Citation Nr: 1316828 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 05-13 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain, from June 10, 2009. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy, rated as part of the service-connected lumbosacral strain, from June 10, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from September 1962 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified in support of these claims at the RO in October 2008 before the undersigned Acting Veterans Law Judge. A transcript of the hearing proceedings is of record. In January 2009 and again in August 2010, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC. In a December 2011 decision, the Board granted an increase in the rating for lumbosacral strain from 10 percent to 20 percent from January 31, 2002, to June 9, 2009. The Board denied an increase to a rating higher than 20 percent from June 10, 2009. The Board also denied an initial rating higher than 10 percent for right lower extremity radiculopathy. The Veteran appealed the denials on those issues to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted a Joint Motion from the Veteran and VA for Partial Remand on the issues of the rating for lumbosacral strain from June 10, 2009, and the initial rating for right lower extremity radiculopathy. Pursuant to the Joint Motion, the Board remanded this case again in October 2012. The case is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. From June 10, 2009, the Veteran exhibited no more than moderate disability of the lumbar spine; did not have any incapacitating episodes due to intervertebral disc disease; his motion of the thoracolumbar spine exceeded 30 degrees on flexion and he did not have favorable ankylosis of the entire thoracolumbar spine; the Veteran has not had a vertebral fracture. 2. From June 10, 2009, the Veteran's right lower extremity radiculopathy has been no more than mild in degree. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for lumbosacral strain, from June 10, 2009, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5242, 5243 (2012); 38 C.F.R. §§ 3.321, DCs 5003, 5010, 5292, 5293, 5295 (2001). 2. The criteria for entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy, rated as part of the service-connected lumbosacral strain, from June 10, 2009, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.124a, DC 8520 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). In this case, the RO provided the Veteran with VCAA notice on his claims by letters dated in June 2002, December 2003, March 2006, February 2007, March 2007, June 2008, and November 2012. The content of these letters reflects compliance with pertinent regulatory provisions and case law, noted above. In the letters, the RO acknowledged the Veteran's claims, notified him of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all necessary information on effective dates. As well, it identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the sources thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. Notice under the VCAA must be provided to a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). The VCAA notice letters, some having been sent before the RO initially adjudicated the Veteran's claims, are not timely. However, the RO cured this timing defect by later readjudicating the Veteran's claims in an October 2008 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran has been afforded a hearing before an Acting Veterans Law Judge (VLJ) in 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 ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ/DRO did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim, at the time, the higher rating for the low back disability. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. In addition, the Veteran provided information regarding pertinent evidence relevant to the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim (again, the higher rating for the low back disability addressed during the hearing), and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ/DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b), (c) (2012). VA made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002 & Supp. 2012). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to the claims. The RO also afforded the Veteran VA examinations of his back and right lower extremity, during which examiners addressed the severity of the disabilities at issue in this decision, to include the recent examination held in January 2013. As noted, the Board remanded this case recently for a VA examination to assess the relevant disability levels of the service-connected low back and right lower extremity disabilities. The VA examiner performed this examination in accordance with the Board's remand. The VA examination report is thorough and supported by the record. This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of his disabilities in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Further, in obtaining this additional medical examination, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings The Veteran seeks higher initial ratings for his low back disability and related right lower extremity radiculopathy. He claims that the ratings assigned these disabilities do not accurately reflect the severity of his low back and right leg symptoms. According to written statements he and his representative submitted during the course of this appeal as well as medical histories the Veteran reported during VA examinations conducted in September 2004, April 2006, June 2009, and January 2013, and his hearing testimony, presented in October 2008, he has had pain in his back since he got out of the service. Allegedly such pain is not initially documented because he sought treatment, including shots, for it in Mexico, where medical care is cheaper, and did not complain about it or report it as he did not want to get fired or kicked out of the Reserves and National Guard. He contends that eventually, once he began seeing Dr. Covington, he could no longer handle the pain. The Veteran claims that in 1996, the pain worsened; since then, the pain, described as burning, throbbing and radiating to the right lower extremity, has been constant and severe, resulting in flare-ups precipitated by prolonged walking and standing. The Veteran asserts that he has also experienced limitation of motion, bilateral peripheral neuropathy and right leg weakness, symptoms that have necessitated VA and private treatment, including cortisone shots, bed rest and the use of habit-forming medication (the dosage of which a doctor recently increased), a TENS unit and a cane. The Veteran's back symptoms allegedly interfere with his ability to twist his body, bend far enough to touch his knees or backwards, lift more than 10 pounds, stand or sit for a prolonged period of time, or walk up stairs. The Veteran asserts that a private doctor told him that retiring from the postal service in 2002 would be the best thing for his back. He claims another doctor told him that if he had back surgery, his back would be worse and stiff, hindering his ability to bend down. In support of his appeal, the Veteran refers to medical evidence of record confirming limitation of motion, diagnosing lumbosacral strain and establishing that he has a disc bulge at L3-L4. Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of 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 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, 4.45 (2012). As regards 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: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and 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). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Low Back The Board previously determined that the Veteran's low back disability warranted a 20 percent rating from January 31, 2002 to June 9, 2009. That matter is not before the Board at this time. Rather, the only matter before the Board is whether the Veteran is entitled to a rating in excess of 20 percent for his low back from June 10, 2009. That being noted, VA twice amended the DCs pertinent to spine ratings during the course of this appeal, which began prior to the June 10, 2009 date. The Board is thus required to consider this claim pursuant to both the former and revised schedular rating criteria. For the period prior to an effective date of an amendment, however, the Board must apply the former version of the regulation. VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (a new law or regulation applies, if at all, only to the period beginning with the effective date of that law or regulation). For the period beginning the effective date of the amendment, the former or revised criteria may be applied depending on the circumstances. When a new statute is enacted or a new regulation issued during the course of an appeal, VA must first determine whether the statute or regulation identifies the types of claim to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to the pending claim would produce genuinely retroactive effects. If so, VA typically would not do so. Otherwise, VA must do so. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation. VAOPGCPREC 7-2003, 69 Fed. Reg. 25,179 (2004). To determine whether a new law has prohibited retroactive effects, one must review: (1) the nature and extent of the change of the law; (2) the degree of connection between the operation of the new rule and a relevant past event; and (3) familiar considerations of fair notice, reasonable reliance, and settled expectations. Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005). If, upon review, a regulation appears to have a retroactive effect, then the regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). Prior to the amendments at issue, DC 5292 governed ratings of limitation of motion of the lumbar spine. DC 5295 governed ratings of lumbosacral strains and DC 5293 governed ratings of intervertebral disc syndrome. Effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome, but continued to evaluate that disease under DC 5293. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine. This update included a renumbering of the DCs pertinent to ratings of the spine. According to that renumbering, DC 5237 now governs ratings of lumbosacral strains and DC 5243 governs ratings of intervertebral disc syndrome. 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235-5243 (2010)). Prior to September 26, 2003, DC 5295 provided that a 0 percent rating was assignable for a lumbosacral strain with slight subjective symptoms only. A 10 percent rating was assignable for strains with characteristic pain on motion. A 20 percent rating was assignable for strains with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A maximum rating of 40 percent was assignable for severe strains with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Under DC 5292, a 10 percent rating was assignable for slight limitation of motion of the lumbar spine. A 20 percent rating was assignable for moderate limitation of motion of the lumbar spine and a 40 percent rating was assignable for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, DC 5292 (2002). Normal ranges of motion of the thoracolumbar spine include: flexion from 0 to 30 degrees; extension from 0 to 90 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2010). Prior to September 23, 2002, a 10 percent rating was assignable for mild intervertebral disc syndrome under DC 5293. A rating of 20 percent was assignable for moderate recurring attacks of intervertebral disc syndrome. A 40 percent rating was assignable for severe, recurring attacks of intervertebral disc syndrome with intermittent relief. A 60 percent rating was assignable for pronounced intervertebral disc syndrome; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2001). In VAOPGCPREC 36-97 (Dec. 12, 1997), the acting VA General Counsel held that: (1) DC 5293 involved loss of range of motion and, therefore, the provisions of 38 C.F.R. §§ 4.40 and 4.45 were to be considered when a disability was evaluated under that diagnostic code; (2) When a veteran received less than the maximum rating under Diagnostic Code 5293 based upon symptomatology which included limitation of motion, consideration was to be given to the extent of the disability under 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponded to the maximum rating under another DC pertaining to limitation of motion; and (3) The Board was to address entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) if there was evidence of "exceptional or unusual" circumstances indicating that the rating schedule, including 38 C.F.R. §§ 4.40, 4.45, and 4.71a, was inadequate to compensate for the average impairment of earning capacity due to intervertebral disc syndrome, regardless of the fact that a veteran received the maximum schedular rating under a DC based upon limitation of motion. See also DeLuca, 8 Vet. App. at 202. Prior to September 26, 2003, a 40 percent rating was assignable for favorable ankylosis of the lumbar spine under DC 5289. 38 C.F.R. § 4.71a, DC 5289 (2002). A rating in excess of 40 percent was assignable for unfavorable ankylosis of the lumbar spine, complete bony fixation (ankylosis) of the spine at a favorable angle, or certain residuals of a fractured vertebra. 38 C.F.R. § 4.71a, DCs 5285, 5286, 5289 (2002). As to rating the Veteran under the criteria for ankylosis, it is noted that ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999). As of September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. A 10 percent rating is to be assigned for intervertebral disc syndrome 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 is to be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is to be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is to be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2010). As of September 26, 2003, all diseases and injuries of the spine other than intervertebral disc syndrome are to be evaluated under the general rating formula. Intervertebral disc syndrome (preoperatively or postoperatively) is to be rated either under the general rating formula or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2010)). According to the general rating formula, a 10 percent rating is to be assigned 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. A 20 percent rating is to be assigned 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. A 40 percent rating is to be assigned for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or 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. 68 Fed. Reg. 51,443, Note (5) (Aug. 27, 2003). Associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate DC. 68 Fed. Reg. 51,443, Note (1) (Aug. 27, 2003). DCs 5003 and 5010 are also applicable to this claim. DC 5010 provides that arthritis due to trauma and substantiated by x-ray findings is to be rated as degenerative arthritis, under DC 5003. 38 C.F.R. § 4.71a, DC 5003 (2001 & 2012). DC 5003, which governs ratings of degenerative arthritis (hypertrophic or osteoarthritis) provides that such arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion of the specific joint is noncompensable, a rating of 10 percent is to be applied for each major joint or group of minor joints affected by the limitation of motion. 38 C.F.R. § 4.71a, DC 5010 (2001 & 2012). The evidence in this case, which is documented below, establishes that the Veteran's low back disability picture does not more nearly approximate the schedular criteria for an initial rating in excess of 20 percent from June 10, 2010. Further, the evidence discussed below also establishes that the radiculopathy in the Veteran's right lower extremity, found to be related to the service-connected low back disability on June 10, 2009, more nearly approximates the schedular criteria for an initial 10 percent rating. Since a medical provider linked the radiculopathy and low back disability, the radiculopathy has been no more than mild. Turning to the evidence of record dated from June 10, 2009, a VA examination report on that date reflected complaints of the Veteran that he had constant, moderate, radiating pain, which has not necessitated physician-prescribed bed rest, but occasionally flares up, causing severe, sharp pain. He further reported that he had to stay off of his feet to alleviate the flare-up. At the time, he was using a cane and limped (also noted to be wearing a knee brace). He indicated that he was retired, dependent on his wife to drive (during shoulder examination, reported that his shoulder disability hindered his driving ability), and able to perform activities of daily living. The VA examiner noted tenderness on palpation of the low back, guarding on motion of the low back, forward flexion to 40 degrees once and to 35 degrees on repetitive movement (due to pain, weakness and fatigue), extension to 5 degrees, left lateral flexion and rotation to 20 degrees, right lateral flexion and rotation to 10 degrees, and no ankylosis. The examiner diagnosed moderately severe lumbar spine degenerative joint disease. Thereafter, the Veteran was seen for treatment of his low back pain on several occasions by VA, including in September 2009, November 2009, January 2011, June 2011, , March 2012, and August 2012. In 2009, he reported a severe episode of back pain while driving to another state. He also reported that he was on several medications for the pain and was using pain cream and his TENS unit. In 2011, he repeatedly reported having pain in his tailbone and also indicated that he used a TEBS unit. In June 2011, he also indicated that he had problems bearing weight on his right leg. A magnetic resonance imaging (MRI) was ordered and performed in August 2011. The MRI revealed mild degenerative changes of the lumbar spine, notably at L4-5. In March 2012, he stated that he had increased back pain. In August 2012, he related that the pain was a 9 out of 10 on a pain scale of 1 to 10 with 10 being worse. The following month, he underwent the removals of a right leg vein. Subsequently, residuals neuropathy was noted to be present from the surgery, but this was unrelated to the Veteran's low back disorder. In January 2013, the Veteran was afforded another VA examination. The examiner noted the Veteran's history of injuring his low back during service. The Veteran reported that he could not stand for more than 10 minutes, had difficulty bending and picking up things, had difficulty getting in and out of bed, had difficulty in getting in and out of his truck, and that he could not drive. Range of motion testing revealed forward flexion to 90 degrees with no pain limitations; extension to 30 degrees with pain at 15 degrees; right and left lateral flexion to 30 degrees with no pain limitations, and right and left lateral rotation to 30 degrees with no pain limitations. Repetitive motion did not result in additional limitations. The examiner indicated that there was no functional loss of the thoracolumbar spine. There was right paravertebral tenderness. However, there were no guarding or muscle spasms. The Veteran exhibited normal strength in all areas, normal sensory testing in all areas, and normal reflex testing in the lower extremities. Straight leg raising was negative for signs of radiculopathy. The examiner indicated that there was no right or left lower extremity radiculopathy on examination as neurological evaluation was normal on nerve studies. There was no nerve involvement. The examiner indicated that the Veteran did not have intervertebral disc syndrome. It was also noted that there was no other neurological involvement, such as bowel or bladder dysfunction. The examiner reported that the Veteran complained of subjective pain radiating down his right leg which was consistent with sciatica and not radiculopathy. The Veteran did not have a vertebral fracture. Arthritis was present on x-rays. The diagnosis was mild degenerative joint disease of the lumbar spine with right sciatica. The examiner indicated that the Veteran's back disability impacted his ability to work in that he had problems bending and lifting and was absent from work at least once per month. However, at the current time, he was retired. Under the old criteria, the Veteran exhibited overall moderate disability (considering repetitive movement, pain, weakness and fatigue) on the June 2009 examination, and overall slight disability on the January 2013 examination, based on range of motion studies. With regard to the criteria for lumbosacral strain, at no time did the Veteran exhibit severe symptoms compatible with a 40 percent rating under the old criteria. Neurologically, the Veteran did not exhibit symptoms such that a higher rating could be assigned on that basis under the former DC 5293 for severe impairment. Moreover, a rating under the lateral criteria for neurological impairment is not warranted since the Veteran was neurologically intact, had normal nerve testings, and did not have intervertebral disc syndrome. There were no neurological complaints, such as muscle spasm or positive leg raising. There was no neurological dysfunction of the bowel, bladder, or other areas. The Veteran did not have incapacitating episodes, i.e., there were no physician-prescribed periods of bedrest. The most recent examination specified that there were no neurological symptoms confirmed objectively. The complaints of sciatica were addressed separately, and are discussed below. In addition, the Veteran never exhibited ankylosis or had a vertebral fracture. Thus, in sum, the Veteran does not meet the criteria under any of the above-cited versions of the rating schedule pertaining to low back disability for a rating in excess of 20 percent for his low back disability. Although the Veteran has subjectively reported severe pain on various occasions, the voluminous VA records, largely contained in the Virtual VA system, do not reflect any findings of functional impairment that falls within the parameters of the criteria set forth in VA's rating schedule. On his range of motion testings, even if pain was present, the functional impairment did not equal the criteria in excess of 20 percent, also taking into consideration all of the other DeLuca factors. The point where pain limited movement was noted, but the functional impairment still more nearly approximated a 20 percent rating and no higher. When examined, the Veteran exhibited no more that moderate impairment, and, on the most recent examination, only mild impairment. Accordingly, a higher rating is not warranted for the low back disability. Radiculopathy DC 8520 governs ratings of diseases of the sciatic nerve. It provides that a 10 percent rating is assignable for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assignable for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assignable for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2010). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, DC 8520 (2010). Historically, the Veteran first reported radiating pain to his right hip in 1996, but testing conducted over the years did not definitively establish that this radiating pain represented radiculopathy secondary to the Veteran's low back disability. In fact, testing showed that the Veteran had degenerative changes in the right hip, which were independent of the low back disability and possibly causing the reported pain. In March 2002 and again in September 2006, testing indicated that the reported radiating pain could, but might not, represent radiculopathy associated with the Veteran's low back disability. However, during a VA peripheral neuropathy examination conducted in May 2007, a VA examiner ruled out such a relationship. In June 2009, during a VA examination, another VA examiner concluded otherwise, relating the radiculopathy to the Veteran's low back disability. The examiner characterized the radiculopathy as mild. Subsequent outpatient treatment noted complaints of radiculopathy. However, these records also noted that the Veteran had radiculopathy secondary to a vein removal in the right leg, which is unrelated. Further, the recent January 2013 examination clarified that the Veteran has sciatica, and no radiculopathy. All nerve testing was normal. In any event, whether radiculopathy or sciatica, the Veteran's level of severity equates to the 10 percent level because it is not more than mild in nature. All sensory, strength, and nerve testing was negative. As such, the Board does not find that a higher rating is warranted. Conclusion In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 20 percent for lumbosacral strain, from June 10, 2009, and in excess of 10 percent for right lower extremity radiculopathy, rated as part of the service-connected lumbosacral strain, from June 10, 2009. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation 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). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's low back and associated right leg disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Veteran has not been hospitalized and has provided varying accounts of why he retired, stating that it was due to his back, but then later that it was due to age. Although the Veteran's low back and right leg disability impacted his ability to perform certain tasks at work and occasionally miss work, the interference was not shown to be marked. Also, as noted, there were no periods of physician-prescribed bedrest, such that he missed marked periods of work. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER An initial rating in excess of 20 percent for lumbosacral strain, from June 10, 2009, is denied. An initial rating in excess of 10 percent for right lower extremity radiculopathy, rated as part of the service-connected lumbosacral strain, from June 10, 2009, is denied. ____________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs