Citation Nr: 1316290 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 07-20 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for post-operative residuals of L4-L5 and L5-S1 disk herniation, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from June to September 1978. As a member of the U.S. Army Reserve, he had ACDUTRA from October 1 to October 14, 2002. This appeal to the Board of Veterans' Appeals (Board) arose from an appeal of a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part denied an increased rating for L4-L5 and L5-S1 disk herniation residuals. The March 2006 rating decision also denied a continuation of a temporary total evaluation beyond January 2005, and the Veteran also appealed that determination, and he requested a formal hearing before an RO decision review officer (DRO). In April 2007, in a VA Form 21-4138, the Veteran withdrew his appeal of the temporary total evaluation issue, and he also withdrew his request for a hearing before a DRO. In light of the appeal withdrawal, the issue of an extension of a total evaluation is not before the Board and will not be addressed in the decision below, except by reference. See 38 C.F.R. §§ 20.200 and 20.204 (2012). The Veteran also has a Virtual VA paperless claims file that is associated with his appeal. The Board has reviewed the Virtual file, and the records in it are duplicative of those in the paper file. In January 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. The AMC/RO substantially complied with the remand, continued to deny an increased rating, and returned the case to the Board for further development. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The AMC/RO complied with the January 2011 remand by obtaining records from the Social Security Administration (SSA) and by arranging a VA examination as directed in the remand. 2. The Veteran's chronic orthopedic post-operative residuals of his herniated disc at L4-5 and L5-S1 have manifested with complaints of chronic pain that radiates to the lower extremities and thoracolumbar spine range of motion (ROM) on forward flexion that exceeds 0 to 60 degrees and exceeds total combine ROM of 120 degrees. 3. Neither forward flexion of less than 0 to 60 degrees, or muscle spasms or guarding that resulted in abnormal gait or spinal contour has manifested at any time during the rating period on appeal. Incapacitating episodes reported were of less than one week in duration. 4. For the period prior to August 5, 2008, the associated chronic neurologic symptomatology of the right lower extremity manifested with incomplete paralysis of the sciatic and common peroneal peripheral nerves of mild severity. 5. For the period August 5, 2008, to April 12, 2011, the associated neurologic symptomatology of the right lower extremity manifested with incomplete paralysis of the sciatic and common peroneal peripheral nerves of moderate severity. 6. For the period since April 13, 2011, the associated chronic neurologic symptomatology of the right lower extremity has manifested with incomplete paralysis of the sciatic and common peroneal peripheral nerves of mild severity. 7. For the period prior to August 5, 2008, the associated chronic neurologic symptomatology of the left lower extremity manifested with incomplete paralysis of the sciatic and common peroneal peripheral nerves of mild severity. 8. For the period August 5, 2008, to April 12, 2011, the associated chronic neurologic symptomatology of the left lower extremity manifested with incomplete paralysis of the sciatic and common peroneal peripheral nerves of moderate severity. 9. As of April 13, 2011, the associated chronic neurologic symptomatology of the left lower extremity manifested with incomplete paralysis of the sciatic and common peroneal peripheral nerves of moderate severe severity. CONCLUSIONS OF LAW 1. The requirements for a rating higher than 10 percent for the chronic orthopedic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1, to include lumbar spine degenerative disc disease (DDD) have not been meet. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Rating Formula For Diseases and Injuries of the Spine (General Formula), Diagnostic Code (DC) 5299-5235 (2012). 2. For the period prior to August 5, 2008, the requirements for a rating higher than 10 percent for sciatic neuropathy of the right lower extremity as chronic neurologic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, Note (1); DC 5299-5235; 38 C.F.R. § 4.124a, DC 8520-8521. 3. For the period August 5, 2008, to April 12, 2011, the requirements for a rating of 20 percent, and no higher, for sciatic/common peroneal neuropathy of the right lower extremity as chronic neurologic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, Note (1); DC 5299-5235; 38 C.F.R. § 4.124a, DC 8520-8521. 4. For the period April 13, 2011, forward, the requirements for a rating higher than 10 percent, for sciatic/common peroneal neuropathy of the right lower extremity as chronic neurologic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, Note (1); DC 5299-5235; 38 C.F.R. § 4.124a, DC 8520-8521. 5. For the period prior to August 5, 2008, the requirements for a rating higher than 10 percent for sciatic neuropathy of the left lower extremity as chronic neurologic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, Note (1); DC 5299-5235; 38 C.F.R. § 4.124a, DC 8520-8521. 6. For the period August 5, 2008, to April 12, 2011, the requirements for a rating of 20 percent, and no higher, for sciatic/common peroneal neuropathy of the left lower extremity as chronic neurologic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, Note (1); DC 5299-5235; 38 C.F.R. § 4.124a, DC 8520-8521. 6. For the period April 13, 2011, forward, the requirements for a rating of 40 percent, and no higher, for sciatic/common peroneal neuropathy the left lower extremity as chronic neurologic manifestations of post-operative residuals of herniated disc at L4-5 and L5-S1 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.71a, General Formula, Note (1); DC 5299-5235; 38 C.F.R. § 4.124a, DC 8520-8521. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Prior to issuance of the rating decision appealed, VA notified the Veteran in April 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain. See 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letter was time-compliant but not fully content-compliant, as it did not inform the Veteran notice how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This omission was cured by the issuance of an April 2006 letter prior to issuance of the statement of the case (SOC). In as much as the Veteran's claim received a complete de novo review by a DRO, as noted in the SOC, the timing-of-compliant-notice error was cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by re-adjudication of the claim, such as in a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). The Board finds further that the evidence of record shows the Veteran was not prejudiced by the initial content error, as the SOC provided full reasons and bases as to why a higher rating was not met. Further, prejudice from a notice-type error is not presumed, and neither the Veteran nor his representative has asserted any specific prejudice as a result of the initial content error. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Hence, the Board finds VA complied with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative asserts that there is additional evidence to be obtained and the record does not otherwise suggest any outstanding evidence. As noted in the Introduction, the Board's remand was for efforts to obtain VA outpatient treatment records, afford the Veteran a current VA examination, and to obtain the records associated with his award of benefits by the SSA. This development has been completed and a supplemental SOC (SSOC) was issued. In sum, the Board finds there is no notice or assistance error that precludes the Board from addressing the merits of the appeal. See id. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21. VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis By way of history, the Veteran sustained a lifting injury to his low back during a tour of ACDUTRA in October 2002. He underwent surgery of the lumbar spine in August 2004. A November 2004 rating decision granted service connection for herniated discs at L4-5 and L5-S1 with an initial 10 percent rating; and, for hypoesthesia of the lateral aspect of the right and left lower extremities as neurologic manifestations of low back disability with an initial 10 percent rating for each lower extremity, all effective in December 2003. The Veteran's claim for an increased rating arose from his May 2006 disagreement with the denial of a continuation of the temporary total evaluation. In light of the fact the November 2004 rating decision considered the Veteran's treatment records through September 2004, and temporary total evaluation was for the period August 26 to December 31, 2004, the Board only considers records from January 2005 forward for this appeal. See 38 C.F.R. § 3.400(o). Intervertebral disc syndrome (IVS) may be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or the General Rating Formula for Diseases and Injuries of the Spine (General Formula); whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Formula, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note 1. When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id., Note 2. The November 2004 rating decision assigned DC 5299-5235, which means the RO evaluated the Veteran's lumbar spine disability analogously to a vertebral fracture or dislocation. See 38 C.F.R. § 4.20. DC 5235 rates low back disabilities under the General Formula. The General Formula provides that, 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 applies if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees but not greater than 235 degrees; or if the disability is manifested by muscle spasm, guarding, or localized tenderness not severe enough to result in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50-percent or more of the height. A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent rating is warranted where lumbar spine forward flexion is 0 to 30 degrees or less. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court Of Appeals For Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). April 2005 private records note the Veteran complained of low back pain that radiated to his buttocks and to the left lower extremities. On a scale of 1 to 10, he assessed the pain as 7/10. This assessment was related to the Veteran's post-surgical treatment of an epidural steroid injection (ESI) for pain relief. Physical examination revealed no tenderness to palpation in the lumbar area, and the lumbar thrombosis was normal. A May 2005 private record shows the same physical findings on a subsequent examination. VA outpatient records of October 2005 note the Veteran complained of low back pain that radiated to the left foot. He reported further that his treatment included Vicodin and Ibuprofen. Physical examination revealed some stiffness on lumbar spine ROM, but ROM was normal. The January 2006 VA examination report reflects the Veteran reported pain that traveled from the lower back to the right leg. He described the pain as sharp, and it was of 10/10 intensity at its highest level. The pain came and went away by itself. The Veteran reported he was able to function with his medication. He denied any incapacitation, and he reported several weeks lost from work due to his surgery. Physical examination revealed the Veteran's posture as normal. There was evidence of bilateral lower lumbar paraspinal muscle spasms. There was no tenderness, and straight leg raising was negative bilaterally. The spine was not in any fixed position or ankylosis. Lumbar spine motion on forward flexion was 0 to 70 degrees. There was increased pain on attempts to go beyond that point. ROM in the other spheres was normal. The examiner noted that repetitive use, or during flares, the Veteran would experience additional functional loss due to pain, but he could not assess the impairment due to additional loss of motion without resorting to speculation. The examiner also noted that there appeared to be IVS in the lateral L5-S1 distribution, but there was no bowel or bladder involvement. The Board finds the objective findings on clinical examination showed the Veteran's lumbar spine disability to have more nearly approximated the assigned 10 percent rating, due to the ROM on forward flexion. A higher rating was not met or approximated, as the examiner noted the absence of any ankylosis, and the fact that there was no abnormal gait or spinal contour due to the muscle spasms. The Board notes the examiner's inability to estimate any additional loss of ROM due to pain following repetitive use or during flare-ups. See 38 C.F.R. § 4.40, 4.45, and 4.59. Nonetheless, the Board finds the totality of the evidence of record shows it is unlikely any additional loss would be 10 degrees or more. The Board makes this assessment on the basis of the outpatient entries that note either full or good ROM. Thus, as of the January 2006 examination, Board finds the Veteran's low back disability more nearly approximated the assigned 10 percent rating as of the 2006 VA examination. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5299-5235. The Board also notes the examination report reflects the examiner noted that there appeared to be IVS pathology at L5-S1. As set forth earlier, IVS is rated on the basis of incapacitating episodes; and, in the absence of incapacitating episodes, on the basis of the chronic orthopedic and neurologic manifestations of the disorder. The examination report notes the Veteran denied any incapacitating episodes during the prior year. Further, the Board notes no entry in the outpatient records to the effect the Veteran was prescribed bed rest by a physician. Thus, as of January 2006, the Veteran's low back is rated on the basis of the chronic manifestations. VA outpatient records of March 2006 note complaints of pain of 9/10, with a notation of some stiffness with flexion and extension of the lumbar spine. Entries of May, June, September, and October 2006, note the Veteran's complaints of chronic pain. The June and September 2006 entries note stiffness on ROM but no specific value to indicate motion on forward flexion was 0 to 60 degrees or less. Neither were there any other findings to meet or approximate a higher rating. The May 2007 VA examination report reflects the Veteran again reported continuous pain that he assessed as 10/10 at its most severe. He described the pain as aching, burning, and sharp; and, the pain was elicited by physical activity, or it came on by itself. The Veteran used Acetaminophen and Diclofenac for relief. He reported further that he could function with his medications, which provided some relief, and he denied any incapacitation. Physical examination of the spine revealed normal alignment of the head. The spine was symmetrical in appearance and spinal motion. Curvatures of the spine were within normal limits, and the Veteran's posture and gait were normal. He did not use any assistive device for ambulation. There was no fixed position or ankylosis. Thoracolumbar spine ROM on forward flexion was 0 to 70 degrees. ROM in the remaining spheres was normal. The examiner noted repetitive use did not reveal any additional loss of ROM due to pain, etc., and there was no IVS with nerve root involvement. The Veteran's outpatient records note his low back symptomatology remained essentially the same. A November 2007 entry notes the Veteran's low back pain was stable, and the acute episode for which the Veteran sought treatment was due to a kidney stone. The August 2008 VA examination report reflects the Veteran reported that, despite having undergone surgery, he complained of constant stiffness and weakness in his lower back. His pain was of an aching and burning nature. He reported his current medication as Diclofenac and Methocarbamol, which seem to help. The Veteran reported, however, that the pain never went away, but he could function with his medication. The pain was aggravated by standing, sitting, and walking. Physical examination of the thoracolumbar spine revealed no tenderness, muscle spasm, or radiation of pain on movement. Neither was there any ankylosis. ROM on forward flexion was 0 to 80 degrees with pain at the extreme end of forward flexion. Backwards extension was to 25 degrees with pain at the extreme end of motion. ROM in the other spheres was normal at 0 to 30 degrees bilaterally, for combined ROM of 225 degrees. See 38 C.F.R. § 4.71a, Plate V. The examiner noted the Veteran complained of pain, fatigue, weakness, and lack of endurance, but there was no decrease in ROM due to pain after repeated use. The examiner also noted the Veteran did not complain of incoordination. The objective findings on clinical examination show the orthopedic manifestations of the Veteran's low back disability continued to more nearly approximate the assigned 10 percent rating. 38 C.F.R. §§ 4.10, 4.71a, General Formula, DC 5299-5235. At higher rating was not met or approximated, as the Veteran's motion on forward flexion was 20 degrees better than the 0 to 60 degrees, and combined ROM 125 degrees better, than what would warrant a 20 percent rating. Id. Further, the examiner noted the Veteran had no additional loss of ROM due to repetitive use. Outpatient records of October 2008 note the Veteran continued complaints of low back pain and stiffness. The entry also notes he asked for a cane for stability when walking, but the entry is not clear as to whether Veteran requested the cane due to his low back of his knee disorder. The April 2011 examination report reflects the Veteran continued to complain of constant pain of 10/10 intensity, which was worse with walking a half to one mile, and standing for an hour. The report notes the Veteran reported without a cane, as he had lost it the night before. He reported no change in his medication. The Veteran reported he was not employed. He helped out at his church by sweeping and taking out the trash. The Veteran reported he underwent a MRI examination a few months earlier, and he was told it showed scar tissue and arthritis in his back. He reported severe flare-ups every one to two months that lasted one to two days, for which he could not identify any specific cause. The Veteran reported that, during flare-ups, he could not do anything, and he needed help getting out of bed. He reported he could walk more than one-quarter mile, but less than one mile. The examination report notes three to four incapacitating episodes that lasted one to two days each. The Veteran reported he saw a doctor for the episodes, but additional medicine was not recommended. Physical examination revealed normal posture and head position. There was lumbar flattening but no other abnormal spinal curvature. There was no spine ankylosis. There was no tenderness, spasm, atrophy, guarding, or weakness. ROM on forward flexion was 0 to 80 degrees with onset of pain at 70 degrees. ROM in the other spheres was normal. The examiner noted that repetitive use testing revealed an additional loss of 10 degrees of forward flexion due to pain. The examiner noted an October 2010 MRI examination that showed stable post-operative changes of the L4-5 disc. The examiner diagnosed low back pain due to degenerative joint disease and disk problem. The examiner also noted there were no incapacitating episodes due to IVS. The Board finds the objective findings on clinical examination show the orthopedic manifestations continued to more nearly approximate the assigned 10 percent rating. Even after factoring the additional loss of 10 degrees of forward flexion, the Veteran's thoracolumbar spine motion on forward flexion was 10 degrees better than the 0 to 60 degrees that would warrant a 20 percent rating. 38 C.F.R. § 4.71a, General Formula. The Board notes the Veteran's report of incapacitating episodes but the examiner's notation of the absence of such episodes. The Board interprets the Veteran's report as meaning he consulted his doctor, but he was not prescribed bed rest. He reported he needed help getting out of bed, which indicates he was not told to stay in bed. Further, the examiner, a trained medical professional, noted there had not been any incapacitating episodes. The Board also notes that the Veteran's related outpatient entries do not indicate prescribed bed rest by a physician. See 38 C.F.R. § 4.71a, DC 5243 Note (1). The Board notes further that the total duration the Veteran reported was eight days, which would garner no more than a 10 percent rating. 38 C.F.R. § 4.71a, General Formula, DC 5243. Moreover, if rated under DC 5243, separate ratings under DCs for associated neurologic symptoms would no longer be applicable. Thus, the Board finds the chronic orthopedic manifestations of the Veteran's lumbar spine post-operative residuals have manifested at 10 percent throughout the entire rating period on appeal. 38 C.F.R. §§ 4.1, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5299-5235. The Board now considers the neurologic manifestations. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, 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 to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The code sheet related to the evaluation of the Veteran's disabilities reflects the symptomatology of the sciatic and common peroneal nerve is combined, as shown by the rating code of 8520-8521. A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation. See 38 C.F.R. § 4.27. The sciatic nerve is indicated by DC 8520, the common peroneal by DC 8521. DC 8520 provides the rating criteria for paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of the common peroneal nerve involves foot drop and slight droop of first phalanges of all toes; cannot dorsiflex the foot; extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost; adduction weakened; anesthesia covers entire dorsum of foot and toes, 38 C.F.R. § 4.124a, DC 8521. Complete paralysis of the common peroneal nerve warrants a 40 percent rating; severe incomplete paralysis, 30 percent; moderate, 20 percent; and, mild, 10 percent. Id. The April 2005 private physical therapy record notes motor strength of the Veteran's lower extremities was normal at 5/5, and there was no atrophy. Deep tendon reflexes were 1+. An October 2005 VA outpatient entry notes the Veteran reported pain that radiated from the low back to his left foot, and the outside of the left foot was numb. A December 2005 entry noted normal motor strength of 5/5, and deep tendon reflexes of 1+ at the left knee but not elicited at the right knee and the ankles bilaterally. At the January 2006 VA examination, the Veteran reported numbness in the left leg that went down to the left foot. He also reported tingling, numbness, and abnormal sensation. Neurological examination revealed normal motor function. There was decreased sensation in the lateral aspect of the left lower extremity at the left foot. Deep tendon reflexes at the knees and ankles were 2+ and equal bilaterally. The examiner diagnosed DDD at the L4-5 level and noted there was no peripheral nerve involvement. The decreased sensation followed an L5-S1 distribution. The Board finds the objective findings on clinical examination show the associated neurological symptoms continued to manifest at 10 percent, as the examination revealed decreased sensation and hypoactive reflexes. The Board notes the December 2005 finding of absent reflexes at the right knee and bilateral ankles; but the evidence of record does not show that to have been a chronic manifestation, as shown by normal reflexes at the January 2006 examination. Further, the motor strength of the Veteran's lower extremities was normal. Thus, the Board finds 10 percent reasonable compensates the Veteran for his functional loss due to decreased sensation. 38 C.F.R. §§ 4.1, 4.10, 4.124, DC 8520. A March 2006 MRI examination report reflects that the imaging revealed extensive granulation tissue/scarring at L4-5 on the right, and L5-S1 on the left. The findings were consistent with residual/recurring central disc extrusion at L4-5. There was no mass effect on adjacent nerve roots, and no evidence to suggest residual/recurrent disc protrusion at L5-S1. May 2006, July 2006, and March 2007 VA outpatient entries collective show that motor strength was normal at 5/5, and sensation was normal. As noted earlier, the May 2007 examination report reflects the Veteran reported chronic low back pain. He also reported that his pain radiated won his leg, although he did not identify which leg he experienced this symptomatology. He, however, did not report any specific symptoms of radiculopathy. Neurological examination normal motor and sensory function, and deep tendon reflexes at the knees and ankles were 2+ and equal bilaterally. An August 2007 VA outpatient entry notes the Veteran complained of lower extremity numbness, and that it was the same numbness he had always had. The associated neurological examination was normal. The August 2008 VA examination report reflects the Veteran reported pain and numbness radiated to the lower extremity. Neurological examination of the lower extremities revealed normal motor function. Sensory examination revealed numbness in the left lateral leg and the dorsal aspect of the left foot. Knee and ankle reflexes could not be elicited. The examiner noted the numbness of the left leg was consistent with L4-5 and L5-S1 radiculopathy. In an addendum also dated in August 2008, in response to questions from the RO, the examiner noted there was intervertebral disc disease at L5-S1 with sciatic and tibial nerve involvement. In as much as the pathologies are combined, the Board finds that the objective findings show the Veteran's lumbar radiculopathy more nearly approximated moderate incomplete paralysis of each lower extremity, and-therefore, a 20 percent rating for each lower extremity as of August 5, 2008, the date of the examination. See 38 C.F.R. §§ 3.400(o); 4.124a, DC 8520-8521. The Board finds a higher, 30 percent, rating was not met or approximated, as the Veteran's motor strength continued to be normal throughout both lower extremities; no muscle atrophy was noted; and, neither a foot dangle nor foot drop was shown by the objective findings on examination. Further, there was no bowel or bladder involvement. The Board notes the examiner's addendum that noted tibial nerve involvement. The rating criteria address an internal and a posterior tibial peripheral nerve. In light of the fact the examiner noted numbness on the outside of the left foot, the Board considers the criteria for the posterior tibial. See 38 C.F.R. § 4.124a, DC 8525. Complete paralysis of the posterior tibial involves paralysis of all muscles of the sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; and plantar flexion is impaired. Id. The medical evidence of record shows the absence of the symptoms listed for DC 8525. Thus, the Board finds the numbness symptomatology of the lateral aspect of the left leg and left foot is in fact captured by the rating under DC 8520-8521. Hence, the Board finds no basis for a separate rating for incomplete paralysis of the posterior tibial nerve. A February 2011 neurology entry notes the Veteran's complaints of left leg pain, weakness, and numbness. The Veteran reported no bowel or bladder problems, and that he could walk about a mile before sharp shooting pain caused him to have to stop and rest. He denied any increase in leg weakness while walking, or a rubbery feeling to his legs due to walking. The entry notes the Veteran wore a brace on his left foot to help him with tripping while walking. He reported the brace did help. Neurological examination revealed motor strength of 5/5 except in the right lower extremity, which was 4+/5. Sensation to light touch was intact except in the left S1 dermatomal pattern. Deep tendon reflexes were 1+ throughout. Hoffman's was negative, there was no ankle clonus, and toes were downward going on Babinski. The examiner noted the Veteran was experiencing left leg L5-S1 radiculopathy in an S1 dermatomal pattern with sensory deficits. No lumbar stenosis or symptoms of nerurogenic claudication were noted. The Veteran opted to continue conservative management. The April 2011 VA examination report reflects the Veteran's gait was abnormal due to a left foot drop. Deep tendon reflexes were 1+ at the left knee and ankle, and 2+ on the right. Plantar flexion was normal on both sides. Motor strength was normal at 5/5 throughout. Muscle tone was normal, and there was no muscle atrophy. Sensation and position sense were. Position sense was normal in the left lower extremity, as was sensation to vibration. Sensation to light touch and pinprick were decreased in the left leg. There was no dysesthesias. The examiner noted the February 2011 neurological assessment. The Board finds the objective findings on clinical examination show the Veteran's left-sided radiculopathy approximated moderately severe severity and a 40 percent rating as of April 13, 2011, the date of the examination, due to the left foot drop in addition to the ongoing symptoms of decreased reflexes and sensation. 38 C.F.R. §§ 4.10, 4.124a, DC 8520-8521. The Board finds a higher rating was not met or approximated on the left side, as the examination findings specifically noted the absence of muscle atrophy. Further, reflexes were still elicited, and the Veteran could flex his toes. The Board finds the examination findings showed the right side to no longer manifest at the moderate severity but at mild and a 10 percent rating. Sensation and reflexes were normal on the right, whereas at the 2008 examination the latter was absent. Thus, the Board finds the Veteran's right-sided radiculopathy more nearly approximated a 10 percent rating as of April 13, 2011, the date of the examination. Id. The Board notes the findings at the April 2011 examination also showed the absence of posterior nerve symptoms. Thus, the Board finds all of the Veteran's lower extremity symptoms are captured by the rating under 38 C.F.R. § 4.124a, DC 8520-8521. The Board also notes all of the examination reports reflect the Veteran's lumbar spine surgical scar is well healed and asymptomatic. Hence, there is no factual basis for a separate rating under the criteria for skin disorders. See 38 C.F.R. § 4.118. The Board has also considered whether additional ratings are warranted for any neurological impairments attributed to the lumbar spine disability. In this regard, the objective evidence does not show , nor does the Veteran claim to have, any diagnosed bladder or bowel neurological impairments due to his lumbar spine DDD. The Board has considered the Veteran's contentions that he currently has erectile dysfunction due to his spine disability. However, there is no objective evidence identifying the erectile dysfunction as a neurological impairment associated with his lumbar spine. Indeed, the August 2008 VA examiner opined the Veteran's erectile dysfunction was not causally related to his lumbar radiculopathy, as the examiner noted the Veteran's symptoms did not have a S1, S2, S3, or S4 distribution pattern. Thus, additional ratings for neurological impairments associated with the lumbar spine disability are not warranted. The Board's review of the SSA records revealed no medical findings that would support ratings higher than those set forth above, as the SSA records are essentially the same as those in the Veteran's VA claims file. The Board has considered the evidence of record and allowed staged ratings were indicated by the evidence. Hence, the Veteran's lumbar spine disability has been appropriately rated. See 38 C.F.R. § 4.1. The Board finds no factual basis for referral for consideration of higher ratings on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). As discussed at length earlier in this decision, the rating criteria describe the nature and severity of the Veteran's lumbar symptomatology, as indicated by the separate ratings for the orthopedic and neurologic chronic manifestations, which means the Veteran's disability picture is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no basis for referral for consideration of higher ratings on an extraschedular basis. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against ratings higher than those allowed, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an increased rating for the chronic orthopedic post-operative residuals of L4-L5 and L5-S1 disk herniation is denied. Entitlement to a rating higher than 10 percent for sciatic/common peroneal neuropathy of the right lower extremity for the period prior to August 5, 2008, is denied. Entitlement to an evaluation not to exceed 20 percent for sciatic/common peroneal neuropathy of the right lower extremity is granted for the period August 5, 2008, to April 12, 2011, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating higher than 10 percent for sciatic/common peroneal neuropathy of the right lower extremity for the period April 13, 2011, forward is denied. Entitlement to a rating higher than 10 percent for sciatic/common peroneal neuropathy of the left lower extremity for the period prior to August 5, 2008, is denied. Entitlement to an evaluation not to exceed 20 percent for sciatic/common peroneal neuropathy of the left lower extremity is granted for the period August 5, 2008, to April 12, 2011, subject to the law and regulations governing the award of monetary benefits. Entitlement to an evaluation not to exceed 40 percent for sciatic/common peroneal neuropathy of the left lower extremity is granted, effective April 13, 2011, subject to the law and regulations governing the award of monetary benefits. REMAND The Board remanded in January 2011 in part for an examination to determine if the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The April 2011 examination report reflects the examiner opined the Veteran is not unemployable due to an in-service back injury. The examiner, however, noted observations that indicated a lack of clarity as whether the Veteran is service connected. The Board agrees with the Veteran's representative that the examiner must be informed of the Veteran's disabilities that are service connected. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will send the claims file to the examiner who conducted the April 2011 examination. The AMC/RO will clearly inform the examiner of the Veteran's disabilities for which service connection is in effect. The AMC/RO will then ask the examiner to opine whether there is at least a 50-percent probability that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The examiner is asked to provide a full explanation for any opinion rendered. In the event the examiner who conducted the April 2011 examination is no longer available, refer the claims file to an equally qualified examiner. Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 2. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs