Citation Nr: 1316168 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 06-21 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 20 percent, prior to February 16, 2011, and in excess of 40 percent thereafter, for degenerative joint and disc disease of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent, prior to February 16, 2011, and in excess of 40 percent thereafter, for left lower extremity radiculopathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to October 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which increased the disability evaluation for the Veteran's degenerative joint and disc disease of the lumbar spine from 10 percent to 20 percent disabling. In November 2010, the Veteran presented testimony before the undersigned Veterans Law Judge in Washington, D.C. A copy of the transcript has been associated with the claims folder. In December 2012, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. In a September 2012 rating decision, the Appeals Management Center (AMC) increased the disability evaluation for the lumbar spine disability to 40 percent disabling effective February 16, 2011. Because the AMC did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35(1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). FINDINGS OF FACT 1. Throughout the entire timeframe on appeal, the Veteran's low back disorder has been manifested by pain and limitation of motion, but not but not by incapacitating episodes or unfavorable ankylosis of the thoracolumbar spine. 2. Prior to February 16, 2011, the Veteran's left lower extremity approximates no more than mild incomplete paralysis of the sciatic nerve. 3. Beginning February 16, 2011, the Veteran lower extremity radiculopathy approximates no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the entire timeframe on appeal, the criteria for a 40 percent for low back disorder are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.26, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). 2. Prior to February 16, 2011, the criteria for a rating in excess of 10 percent for left lower extremity pain as a residual of the low back disorder are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.26, 4.40, 4.45, 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8526 (2012). 3. Beginning February 16, 2011, the criteria for a rating in excess of 40 percent for left lower extremity pain as a residual of the low back disorder are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.26, 4.40, 4.45, 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8526 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter on two occasions. Initially, the Board remanded the matter in January 2011 for further development. Specifically pertaining to these claims, the Board instructed the RO to obtain pertinent Social Security Administration (SSA) records and afford the Veteran an examination for his disability. Pursuant to the Board's remand, SSA records were obtained and the Veteran was afforded a VA examination in February 2011 in accordance with the instructions of the January 2011 remand. His claims were readjudicated in an September 2012 supplemental statement of the case. The Board remanded this matter again in December 2012 for readjudication of his claims-specifically the neurological manifestations related to his low back disability. The Veteran's claims were readjudicated in a January 2013 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in July 2004 and March 2006, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The March 2006 letter, notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in various supplemental statements of the case, most recently dated in January 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). Although fully satisfactory notice was delivered after the claims were adjudicated, the RO subsequently readjudicated the claims based on all the evidence in various supplemental statements of the case issued, most recently in January 2013. The Veteran was able to participate effectively in the processing of his claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete notice been provided at an earlier time. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Also, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in February 2011. 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 VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. As noted above, he presented testimony before the undersigned in November 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) conducting a hearing fulfill two duties. These 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, during the Board personal hearing, the undersigned noted the elements of the claim for an increased rating that were lacking substantiation. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to ascertain the current severity of his low back and left lower extremity disabilities. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. 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 for service connection. Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Therefore, the duties to notify and assist have been met. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012). While 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). In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will thus consider entitlement to "staged ratings" in this case. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (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 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 Board has evaluated the Veteran's spine disorders under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The rating criteria for disabilities of the spine were amended most recently in September 2003. Because the Veteran filed the instant claim in May 2004, the current rating criteria for disabilities of the spine apply. 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 residuals of injury or disease as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 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 (20 percent); For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 (10 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2012). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). 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. Id. Analysis At the outset, the Board notes that it has not been contended or shown in this case that the Veteran has demonstrable deformity of a vertebral body (Diagnostic Code 5285), complete bony fixation of the spine (Diagnostic Code 5286), or ankylosis of the lumbar spine (Diagnostic Code 5289). Accordingly, the diagnostic codes pertaining to these disabilities are not applicable in the instant case. By way of background, the Veteran was originally awarded service connection for his lumbar spine disability (on an aggravation basis) in an August 1976 rating decision. He filed his current claim for increase in May 2004. A December 2004 rating decision awarded a 20 percent rating for the degenerative joint disease and degenerative disc disease of the lumbar spine, effective May 2004. In the June 2006 Statement of the Case (SOC), this rating was increased to 20 percent disabling, effective May 2004. In a September 2012 rating decision, the Appeals Management Center (AMC) granted a 40 percent rating for the Veteran's lumbar spine, effective February 2011. It also granted a 10 percent rating for radiculopathy of the left lower extremity, effective May 2004, and a 40 percent rating, effective February 2011. Following his increased rating request, the Veteran was afforded a VA examination in August 2004. The examiner noted a history of congenital levoscoliosis of the lumbosacral spine, which was found to be aggravated by several back injuries while on active duty. The Veteran endorsed constant stiffness and pain in his back, with radiation to the lower extremities (more so in the left lower extremity). His pain is increased with repetitive bending, stooping, or lifting more than 25 pounds. He described being unable to walk more than 45 minutes without having to rest, and it takes approximately two hours every morning for him to "loosen up." The Veteran indicated that he cannot climb stairs without pain and cannot work on a ladder. In the past year, the Veteran described two incapacitating episodes lasting from 2 to 3 days, but his pain is constant and sometimes aggravated for about two weeks at a time. He endorsed past use of a back brace and pain pills, but without much effectiveness. He denied any history of sphincter problems and can perform his activities of daily living, despite some difficulty tying his boots. He endorsed difficulty getting out of the car, but has no history of falling. The Veteran contends that he "lives in agony" due to his low back disability. Physical examination of the Veteran revealed normal posture and gait, and is ambulatory without assistive devices. The examiner observed that the Veteran was able to undress without help, but slowly. Examination of the thoracic spine revealed some mild scoliosis with convexity to the left and mild mid-thoracic tenderness to palpation. The examiner found that the Veteran's most tender area was the left sacroiliac joint, but there was some tenderness to the lumbosacral spine too. The examiner appreciated mild paravertebral muscle spasm of the left side. Forward flexion of the thoracolumbar spine was to 60 degrees, with pain beginning at 45 degrees. The examiner indicated that the Veteran was able to flex to 80 degrees with multiple expressions of pain. Extension was from 0 to 15 degrees. The Veteran indicated that his back is stiff, but there is less pain appreciated on backward extension. Left lateral flexion was to 20 degrees, with pain at 20 degrees; right lateral flexion to 30 degrees with pain at 30 degrees; and bilateral rotation to 25 degrees in each direction. Following repeated manipulation, the Veteran developed some more spasm of the left paravertebral muscles and he appeared to be in more pain. The examiner opined that it is possible he would have further functional limitation with increased use or during flare-up, but it was not feasible for the examiner to express the increase in terms of additional loss of motion. Additionally, the examiner was unable to express the amount of weakness or fatigability the Veteran experienced, and there is no objective evidence of incoordination or instability. Deep tendon reflexes and strength testing were normal, and there was no objective evidence of sensory or motor deficits. X-ray of the lumbosacral spine showed scoliosis with convexity to the left. The examiner described the scoliosis as moderately severe. The examiner also diagnosed degenerative arthritis and degenerative disc disease with chronic lumbosacral strain. In 2005, the Veteran first started describing recurrent radiating pain in his left lower extremity. He indicated that this started following a July 2004 work-related injury. He described the pain and traveling down his left leg from the left buttock down to his foot. He stated it is toothache-like pain, and his thigh muscles tighten. He endorsed associated numbness and weakness. The Veteran was afforded another VA examination of the spine in December 2005, at which time he was diagnosed as having scoliosis, degenerative arthritis and degenerative disc disease of the lumbosacral spine with chronic lumbosacral strain, and left lumbar radiculopathy. The Veteran described constant back pain that is aggravated by exertion, walking more than 100 feet, standing longer than 10 minutes. He has relief with rest. He also described radiation down the left leg with muscle spasm, and the leg goes numb and "wants to give out." The Veteran cannot run or climb up and down. He can perform his activities of daily living, and can lift, but not carry much. He again denied sphincter problems, but endorsed difficulty stooping and bending for more than a couple minutes. He denied any particular flare-ups other than the pain described above. He indicated that his last incapacitating episode was 2 years ago, and he could not get out of bed or function for about a week. The examiner indicated a history of treatment with pain pills, back braces, occasional physical therapy and a TENS unit-all of which have not provided long-lasting relief. Physical examination revealed lumbar scoliosis with convexity to the left, and palpable left paravertebral muscle spasm that is tight and tender. The examiner indicated that all motion of the spine is painful with radiation of pain down the left leg. Forward flexion of the thoracolumbar spine is to 80 degrees, initially, and then down to 45 degrees after repetition due to additional pain and stiffness. Extension is to 20 degrees initially, and then to 10 degrees after repetition. Lateral flexion to the right is to 10 degrees, lateral flexion to the left is to 30 degrees, and lateral rotation is to 25 degrees bilaterally. Following repetitive testing, the examiner noted evidence of fatigue, increased spasm, and increased pain and weakness. The examiner again indicated that there is pain with the whole spinal motion. There was no incoordination, but the Veteran was unable to do heel and toe walking. Sensory testing was within normal limits, but straight leg raising is positive on the left side. Deep tendon reflexes were normal. During the Veteran's November 2010 hearing, he indicated that he experiences what he perceives as incapacitating episodes on a weekly basis, lasting at least two days. Then, he went on to testify that he is incapacitated seven days a week, 365 days a year. He described numbness and weakness in his left lower extremity with tingling in his toes. He also described radiating pain down his left leg. The Veteran testified that he cannot go very far without urinating and he believes it is related to his medication and injury to his back. He further indicated that during a self-described incapacitating episode, he is unable to perform his activities of daily living. In February 2011, the Veteran was afforded another VA examination of the spine during which he described daily, severe flare-ups of back pain. He indicated that during a flare-up, he has to lie down and take more prescription medication. He denied a history of urinary incontinence, but endorsed urinary urgency and frequency. He endorsed erectile dysfunction and numbness/weakness in the left lower extremity. The examiner noted a history of fatigue, decreased motion, stiffness, weakness, and spinal pain. The Veteran again related that he believes he experiences incapacitating episodes every day due to his lumbar spine disability. He described only being able to cook himself a simple breakfast, bathe, and dress, because he then must lie down secondary to pain. Physical examination of the Veteran revealed a stooped posture with his head slightly bent forward. There is no symmetry in appearance as the Veteran walks with a cane in his left hand to support his left leg and spine. His gait is abnormal as he limps on the right side to avoid weight-bearing on his left knee. The only abnormal curvatures appreciated are lumbar flattening and scoliosis. The examiner described thoracolumbar ankylosis on flexion. Examination of the muscles of the spine revealed spasm on the left, atrophy on both sides, and pain, tenderness, and weakness. There was not localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 25 degrees, left and right lateral rotation to 25 degrees. There is objective evidence of pain on active range of motion, which results in flexion to 60 degrees, extension to 15 degrees, bilateral flexion to 20 degrees and bilateral rotation to 20 degrees. Reflex examination findings were within normal limits, but sensory examination revealed reduced sensation in the left lower extremity. The affected nerves were listed as the sciatic and femoral causing decreased vibration, positional, pain, and light tough to the left tight, leg, and toes. Right lower extremity was within normal limits. Detailed motor examination showed reduced left side muscle strength in the femoral/deep peroneal nerve. Muscle tone was normal. The examiner further noted that there is increasing pain upon flexion from 50 to 70 degrees, and with repeated flexion and extension, he had spasm of the thoracolumbar spine on the left side. This caused grimacing and complaints of more pain. The examiner observed weakened movement and excess fatigability. The examiner indicated that the Veteran's reported incapacitating episodes are related to his low back disability. The examiner diagnosed the Veteran as having severe IVDS causing severe lumbar pain radiating to the left leg upon increasing movement of the spine. He described the Veteran's effects on occupational activity as including inability to stand, walk, or bend due to his back disability. Further, he has decreased mobility, problems with lifting/carrying, pain, and decreased strength in the left lower extremity. The effects on the Veteran's daily activities include his inability to cook more than a simple breakfast due to back pain with more movement. The examiner described the Veteran's symptoms as mild to moderate, but can become severe if there is too much movement. During the timeframe on appeal the Veteran continues to undergo VA treatment for complaints of chronic low back pain with limitation of motion and left leg numbness. In 2008, he described that his left leg feels like he is walking on pins and needles, and that his back pain has not changed in character. Upon careful review of the evidence of record, the Board finds that the Veteran is entitled to a 40 percent rating, but not higher, for the entire appellate period for his degenerative disc and joint disease of the lumbar spine. The evidence of record, prior to February 2011 shows that the Veteran had pain with all motion/flexion in low back (as described in the December 2005 VA examination report). The Board finds that throughout the timeframe on appeal, the Veteran's symptoms are most analogous to forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Board is aware that during the timeframe on appeal, forward flexion of the lumbar spine was, at its worst, to 45 degrees. The Board notes, however, the Veteran has consistently reported chronic pain with all motion in his spine without relief from braces, medication, or his TENS unit. Thus, his symptoms, with all consideration of functional impairment, reflect flexion of less than 30 degrees in the thoracolumbar spine. The Board finds that the Veteran is not, however, entitled to a rating in excess of 40 percent for the lumbar spine disability. The evidence of record does not show that the Veteran experiences unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Indeed, the most recent VA examination showed some indications of unfavorable ankylosis-namely described as neurologic symptoms (as will be addressed below) due to nerve root stretching-but, the examiner clearly identified the Veteran as having favorable ankylosis of the thoracolumbar spine. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc syndrome. The Veteran maintains that he experiences incapacitation due to his low back disability 365 days a year. However, there is no evidence showing that bed rest has been prescribed by a physician. As such, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. As such, the Board finds that the Veteran's low back disability warrants a 40 percent rating, but not higher, for the entire appellate period. The Board accepts that the Veteran has functional impairment and pain in rating this disability. See DeLuca. The Board finds that the Veteran's own reports of symptomatology to be credible, and have considered the DeLuca factors in increasing his rating for the time period prior to February 16, 2011. However, neither the lay nor medical evidence reflects the functional equivalent of unfavorable ankylosis required to warrant the next higher evaluation for the period considered. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's back disability. With respect to the Veteran's left lower extremity radiculopathy, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent, prior to February 2011, or in excess of 40 percent thereafter. Prior to February 2011, the evidence of record does not show that the Veteran's left lower extremity radiculopathy was more than mild in nature. Again, service connection was separately awarded for radiculopathy of the left lower extremity in a September 2012 rating decision. A 10 percent rating was awarded, effective May 2004. As noted above, the Veteran first described shooting pain in the left lower extremity in 2004-2005, following a work-related injury. During the August 2004 and December 2005 VA examinations, the Veteran's deep tendon reflexes were normal, and there was no evidence of sensory deficits. In 2010, he began complaining again of increasing numbness, tingling, and pain down the left lower extremity, and during the February 2011 VA examination, he first exhibited more severe symptoms in his left lower extremity. In any event, at no time prior to February 16, 2011, does the evidence show that the Veteran's radiculopathy of the left lower extremity was any more than mild in nature. As such, a disability rating in excess of 10 percent for radiculopathy of the left lower extremity, prior to February 16, 2011, is denied. As noted above, the Veteran was awarded a 40 percent rating for his left lower extremity radiculopathy in a September 2012 rating decision, effective February 16, 2011. A 40 percent rating is warranted for moderately severe paralysis of the sciatic nerve or complete paralysis of the quadriceps extensor muscles. A higher, 60, percent rating is warranted upon a showing of severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. 40 percent is the maximum rating under Diagnostic Code 8526 (femoral nerve). The evidence of record shows reduced sensation in the left lower extremity. The affect nerves were listed as the sciatic and femoral causing decreased vibration, positional, pain, and light tough to the left tight, leg, and toes. There is evidence of atrophy of the Veteran's back muscles, but no evidence of atrophy of the left lower extremity. In fact, the February VA examiner indicated that the Veteran had reduced left side muscle strength in the femoral/deep peroneal nerve, but muscle tone was normal. Absent a finding of severe incomplete paralysis of the sciatic nerve with evidence of marked atrophy, a rating in excess of 40 percent, beginning February 16, 2011, for radiculopathy of the left leg is not warranted. In summary, the Board concludes that the preponderance of the evidence is against the claim for a disability rating in excess of 40 percent for lumbar spine disability, and in excess of the staged 10 and 40 percent staged ratings for radiculopathy of the lower extremity. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of additional staged ratings has been considered and is not for application. See Fenderson, supra. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular 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 service-connected low back and left lower extremity disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's low back and left lower extremity disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, the current ratings are adequate to fully compensate the Veteran for his pain, limited motion, incomplete paralysis, and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU Considerations As noted above, the Veteran filed his claim for increase in May 2004. The Veteran was awarded a total disability rating based upon individual unemployability (TDIU) beginning July 22, 2004. The Court has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case the Veteran has not asserted, and the evidence of record does not show, that his low back disability and left lower extremity disability rendered him unemployable from May 2004 to July 2004. Accordingly, a claim for TDIU is not raised by this appeal. ORDER For the entire appeal period, a 40 percent rating, but not higher, for degenerative joint and disc disease of the lumbar spine is granted. A disability rating in excess of 10 percent, prior to February 16, 2011, and in excess of 40 percent thereafter, for radiculopathy of the left lower extremity is denied. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs