Citation Nr: 1317189 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 05-06 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating greater than 20 percent for residuals of a low back strain injury with chronic lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for residuals of a low back strain injury with chronic lumbosacral strain and assigned a 20 percent disability rating, effective October 30, 2001. In March 2006, the Veteran testified at a hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing testimony is present in the claims file. In June 2007, February 2010, and August 2012, the Board remanded the Veteran's appeal for further development. In January 2013, the RO issued a rating decision granting service connection for radiculopathy of the bilateral lower extremities and granted a 20 percent disability rating for the right lower extremity and a 10 percent disability rating for the left lower extremity, effective October 31, 2012. The Veteran did not appeal this determination. However, as the Veteran's symptoms of pain radiating to the lower extremities were documented during evidentiary development of his claim on appeal, and consideration of neurological symptoms is inherent to the evaluation of disabilities of the spine under the rating criteria for disabilities of the spine, the issues of the initial ratings assigned for radiculopathy of the bilateral lower extremities prior to October 31, 2012, are on appeal as part of the Veteran's claim for a higher initial rating for residuals of a low back strain injury with chronic lumbosacral strain. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (cautioning that due consideration must be given to the distinction between an original claim for benefits for a psychiatric disorder placed in appellate status by the Veteran's disagreement with the initial rating assigned and a new claim for an increased rating). FINDINGS OF FACT 1. The Veteran's service-connected lumbar spine disability is diagnosed as residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, with radiculopathy. 2. The Veteran's service-connected lumbar spine disability is currently manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees prior to October 31, 2012, and by forward flexion of 30 degrees or less thereafter. 3. Prior to May 24, 2010, the evidence of record does not show objective evidence of sensory or motor impairment, only subjective reports of symptoms of radiating pain to the bilateral lower extremities. 4. From May 24, 2010, to October 30, 2012, the Veteran's right lower extremity radiculopathy was manifested by symptoms analogous to mild incomplete paralysis. 5. From May 24, 2010, the Veteran's left lower extremity radiculopathy was manifested by symptoms analogous to mild incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to October 31, 2012, the criteria for an initial rating higher than 20 percent, for service-connected residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5010-5237 (2012). 2. As of October 31, 2012, the criteria for a 40 percent rating, and not higher, for service-connected residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5010-5237 (2012). 3. Prior to May 24, 2010, the Veteran did not have an objectively manifested, compensable right or left lower extremity neurological disorder, and the assignment of separate ratings are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1), 4.124a, Diagnostic Code 8720 (2012). 4. From May 24, 2010 to October 30, 2012, the criteria for a 10 percent rating, and not higher, for service-connected right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8720 (2012). 5. From May 24, 2010, the criteria for a 10 percent rating, and not higher, for service-connected left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8720 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties A. Duty to Notify and Assist The Department of Veterans Affairs (VA) has a duty to notify the claimant of the information and evidence that is necessary to substantiate the claim and a duty to assist claimants in obtaining that evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). No further notification requirements were required in this case as the Veteran's claim for service connection has already been granted and only the assignment of his initial rating is on appeal. Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that where a service-connection claim has been substantiated, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to downstream elements). VA has obtained the Veteran's service records, VA treatment records, and private treatment records, and he has been provided with a thorough and contemporaneous VA examination where the examiner fully considered his relevant medical history, including his lay statements, and described the disability in sufficient detail to allow for a fully informed evaluation of the service-connected disability on appeal. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail to allow for a fully informed evaluation of the claimed disability); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see e.g. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n1 (Fed. Cir. 2006) (noting that a medical opinion is inadequate where the examiner fails to consider whether the Veteran's lay statements presented sufficient evidence of the etiology of the claimed disorder). Therefore the duty to assist has been met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA's duties to notify and assist have been met, and any additional development efforts would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, there is no prejudice to the Veteran in adjudicating this appeal. B. Duties of Hearing Officer In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that a hearing officer must fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2): (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the March 2006 hearing, the VLJ identified the issue on appeal and the Veteran's precise contentions, elicited relevant testimony from the Veteran in support of his contentions, and reviewed the Veteran's history of medical treatment for the purpose of identifying any additional records that may not have been obtained. Neither the Veteran nor his representative have alleged that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the March 2006 Board hearing. The hearing focused on the elements necessary to substantiate the claims on appeal, and the Veteran and his representative, through testimony, argument and questions, demonstrated actual knowledge of the elements necessary to substantiate his claims. Therefore, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board will proceed to adjudicate the claims based on the current record. C. Compliance with Remand Orders VA has a duty to ensure compliance with the terms of remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, it is substantial compliance, not perfect compliance, which is required. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, in June 2007, February 2010, and August 2012, the Board directed the AMC to provide the Veteran with proper notice, obtain his outstanding VA treatment records, and obtain a VA examination report containing sufficient evidence to facilitate a fully informed evaluation of the Veteran's service-connected disability. Additionally, the Board directed the AMC to readjudicate the Veteran's claim. All requested actions were completed with substantial compliance with the Board's remand directives. The Veteran was provided with proper notice in July 2007, his outstanding VA treatment records were obtained, and he was provided with several VA examinations of his lumbar spine disability. Therefore, the Board is satisfied that the RO has substantially complied with the Board's June 2007, February 2010, and August 2012 remand orders. II. Increased Initial Rating Claims In May 2004, the RO granted service connection for residuals of a low back strain injury with chronic lumbosacral strain and assigned a 20 percent rating, effective October 30, 2001. In a January 2013 rating decision, separate ratings of 20 percent for the right and 10 percent for the left were granted for radiculopathy of the lower extremities, effective October 31, 2012. A. Law Governing Appeals of Initial Ratings Disability ratings are based on the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Furthermore, in a claim arising from the Veteran's dissatisfaction with the initial disability rating assigned pursuant to a grant of service connection, VA must assess the level disability from the date of initial application for service connection and determine whether the facts show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (("[S]taged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."). Accordingly, the Board has assigned staged ratings for the Veteran's lumbar spine disability with radiculopathy, as discussed below. B. Rating Disability of the Musculoskeletal System 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. 38 C.F.R. § 4.40. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. 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. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Id. With regard to joint disabilities, the factors of disability reside in reductions of their normal excursion of movements in different planes. 38 C.F.R. § 4.45. When determining the extent of the reduction of excursion of movement, VA must consider evidence of less movement than normal, more movement than normal, weakened movement, excess fatigueability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. Id. Related considerations include instability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Id. In determining the extent of the limitation of motion present, VA must consider the degree of impairment upon repetitive use and during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); Voyles v. Brown, 5 Vet. App. 451, 454 (1993). However, when evaluating the reduction of excursion due to pain, any painful motion is not equivalent to limited motion under the diagnostic code provisions pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows that the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id. at 37. Pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36; contra Burton v. Shinseki, 25 Vet. App. 1 (2011) (directing VA to consider pain more generally when assigning disability ratings under 38 C.F.R. § 4.59). Where the diagnostic code is not predicated on the loss of range of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). C. Evidentiary Burdens The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (explaining that every piece of evidence does not have the same probative value and equal weight will not be accorded to every item of evidence in the record); see also Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board's responsibility to evaluate the evidence applies to both medical evidence and competent lay evidence. Madden, 1125 F.3d at 1481; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In evaluating lay evidence, the Board will determine whether the particular disability is the type of disability for which lay evidence is competent. Kahana, 24 Vet. App. at 433 n.4. If so, that evidence will be weighed against the other evidence of record in making the determination at issue. Id. In a claim for a higher initial disability rating, an appellant's lay statements alone may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons or bases for its findings and conclusions on all material issues of fact and law, there is no need to discuss each piece of evidence submitted by the Veteran, or on his behalf, in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (explaining that the Board must review the entire record, but need not explicitly discuss every individual piece of evidence in the record). Accordingly, the analysis below will focus on an evaluation of the material evidence of record and whether this evidence substantiates the claims on appeal. Therefore, the Veteran should not assume that the Board has overlooked evidence that is not explicitly mentioned in the following discussion. See generally Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). D. Current Diagnosis of the Service-Connected Disability The Board will reconcile any changes to the diagnosis of the Veteran's service-connected disability, keeping in mind the diagnosis and etiology of the disability for which service connection was initially granted. See 38 C.F.R. § 4.13. Here, the Veteran is currently service-connected for residuals of a low back strain injury with chronic lumbosacral strain. He is also diagnosed with degenerative disc disease of the lumbar spine, degenerative joint disease of the lumbar spine, and radiculopathy of the bilateral lower extremities. In October 2012, the VA examiner found that the Veteran suffered a documented herniated nucleus pulposus in service, with associated radiculopathy. The October 2012 VA examiner provided the opinion that this condition progressed into chronic lumbar strain and degenerative joint disease of the lumbar spine. A medical opinion obtained in May 2004 also traced the point of onset of the Veteran's lower back disability to the herniated nucleus pulposus in service. Therefore, the proper characterization of the Veteran's current service-connected lumbar spine disability is residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, with radiculopathy. The Board notes the April 2011 medical opinion found that degenerative joint disease and degenerative disc disease were not related to service, but, as noted by the October 2012 VA examiner, this opinion was not given in consideration of the herniated nucleus pulposus documented in service. Neither the April 2011 opinion, nor the May 2010 examination report completed by the same examiner, show that a history of a herniated nucleus pulposus in service was noted. Therefore, this opinion was not given in consideration of sufficient facts and is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). E. Application of Regulations Governing Evaluations of Disabilities of the Spine The schedular criteria for rating the spine have been amended twice during the pendency of the Veteran's appeal. First, the rating criteria pertaining to intervertebral disc syndrome (IVDS) under 38 C.F.R. § 4.71a, DC 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293 (2003)). Second, effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003) (codified at 38 C.F.R. § 4.71a (2004)); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). This update included a renumbering of the diagnostic codes pertinent to back ratings. Id.; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2004). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date. VAOPGCPREC 3- 2000 (Apr. 10, 2000). Therefore, the Board will evaluate the Veteran's claim for a higher initial rating under both the old criteria, and, after the applicable effective date, under the new criteria or old criteria, whichever is more favorable, in order to afford the Veteran every possible benefit. As the Veteran's service-connected lumbar spine disability is currently rated under the new criteria, the Board's analysis will start with the new criteria and proceed to consideration of whether a higher rating is warranted under the applicable diagnostic codes found under the old regulations prior to the September 23, 2002, and September 26, 2003, amendments. The Veteran's service-connected lumbar spine disability, including residuals of a low back strain injury with chronic lumbosacral strain, is currently rated at 20 percent disabling under the amended criteria for rating disabilities of the spine found at 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires the use of another to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 is used to rate arthritis due to trauma, and Diagnostic Code 5237 is used to rate lumbosacral or cervical strain. 38 C.F.R. § 4.71a. Diagnostic Code 5010 is used to rate traumatic arthritis, which is governed by the same criteria used to rate degenerative arthritis under Diagnostic Code 5003. Under 5003, arthritis established by x-ray findings is rated on the basis of limitation of motion, where compensable. Under the new regulations, limitation of motion of the spine is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities are to be rated separately under the appropriate diagnostic code when rating spine disabilities under the General Rating Formula. Id., General Rating Formula, Note (1). The General Rating Formula provides for a rating higher than 20 percent only where the Veteran suffers from unfavorable ankylosis or exhibits forward flexion limited to 30 degrees when the full effects of limiting pain, additional disability following repetitive motion, or worsening of symptoms caused by flare-ups are considered. See 38 C.F.R. §§ 4.40, 4.45; see also See DeLuca, 8 Vet. App. at 205-06. Here, the Veteran's forward flexion was limited to 30 degrees following repetitive use testing at the October 2012 VA examination. Consequently, under the Veteran's current diagnostic code, DC 5010-5237, he is entitled to a 40 percent rating as of October 31, 2012, the date of the VA examination. As there is no evidence of ankylosis of the lumbar spine in the evidence of record, assignment of a rating higher than 40 percent is not warranted under the General Rating Formula. However, the symptomatology documented at the October 2012 VA examination constitutes a significant change from the symptoms exhibited at his prior examinations and documented in his treatment records prior to that date. Through the record prior to October 2012, the Veteran generally exhibited forward flexion ranging from 50 to 90 degrees, taking into account the effects of limitation of motion due to pain and limitation following repetitive motion or upon flare-ups. See, e.g., May 2010 VA examination report (showing flexion to 70 degrees with sensation of pain throughout range of motion and no additional limitation following repetitive use); September 2009 VA examination report (showing forward flexion to 90 degrees with end of range pain not additionally limited following repetitive use); January 2006 VA examination report (showing 50 to 70 degrees of forward flexion with pain, with an additional 15 to 20 degrees of flexion lost upon repetitive motion); January 2004 VA examination report (showing 50 degrees flexion); See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 205-06. While the Veteran reported weather-related flare-ups, the effects of these flare-ups were not described as productive of additional range of motion loss; rather, the Veteran stated that the flare-ups required additional medication and rest. See, e.g., September 2009 VA examination report. Although range of motion data recorded at his January 2006 VA examination indicates that the Veteran's forward flexion was limited to 50 to 70 degrees at that time, further reduced an additional 15 to 20 degrees upon repetitive motion, this examination data is outweighed by the remainder of the examination data of record which indicates that this finding is an anomaly and not indicate of the progressive worsening of the Veteran's lumbosacral spine disability. This forward flexion data does not correspond with the examination data recorded in September 2009 or May 2010 and neither the examination reports nor treatment records indicate any overall degree of worsening specific to the time period surrounding January 2006. Rather, the examination and treatment data, and the Veteran's own descriptions of his symptoms, show that his lower back disability has progressively worsened throughout the period on appeal. Therefore, prior to October 31, 2012, a rating higher than 20 percent is not warranted under the General Rating Formula as the preponderance of the evidence is against finding that forward flexion of the lumbar spine was limited to 30 degrees or less during this period. Higher ratings are not available for either stage under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for IVDS). Under the Formula for IVDS, a rating higher than 20 percent disabling is only awarded where there are incapacitating episodes having a total duration of at least four weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Veteran does not suffer this degree of incapacitation. In September 2009, the Veteran reported four incapacitating episodes over the past 12 months of indeterminate duration. While the examination report does not indicate whether bed rest was prescribed by a physician, the greater weight of the evidence indicates that physician-prescribed bed rest was not required at any time during the appellate period, as there is no mention of extended periods of bed rest in the September 2009 examination report and the May 2010 and October 2012 VA examination reports document no incapacitating episodes requiring physician-prescribed bed rest. Therefore, the greater weight of the evidence is against finding that the Veteran is entitled to a higher rating for either staged period under the Formula for IVDS. Furthermore, unlike the General Rating Formula, neurologic abnormalities are not rated separately under the Formula for IVDS, where the focus of the evaluation is on the extent of acute orthopedic and neurologic symptoms. See 67 Fed. Reg. 54,345 (August 22, 2002) (explaining that each affected spinal segment may be rated on incapacitating episodes or chronic neurologic and orthopedic manifestations), 54,347 (explaining that an "incapacitating episode" of intervertebral disc syndrome means a period of acute orthopedic and/or neurologic symptoms). In the Federal Register, the Secretary explained that the new criteria allowing ratings based on either chronic neurologic and orthopedic manifestations under the General Rating Formula or incapacitating episodes under the Formula for IVDS was not a significant departure from the previous rating criteria under Diagnostic Code 5293, notwithstanding the holding in Bierman v. Brown, 6 Vet. App. 125, 129 (1994), as the BVA Chairman's Memorandum No. 01-92-23, dated August 10, 1992, determined that no separate disability rating for neurological symptomatology would be assigned under the old code where a 60 percent disability rating for intervertebral disc syndrome was in effect, except for exceptional cases. Therefore, if a disability evaluation was assigned for the Veteran's lumbar spine disability under the Formula for IVDS, he would not be entitled to the separate disability ratings for radiculopathy of the right and left lower extremities discussed below. Consequently, the Board's analysis turns to the old regulations in order to determine whether higher ratings are warranted under any applicable diagnostic codes governing the evaluation of disabilities of the spine under the criteria in effect prior to the September 23, 2002, and September 26, 2003, amendments. There are several applicable rating codes under the old criteria for rating disability of the lumbar spine. Under Diagnostic Code 5292 (2002), a rating higher than 20 percent is in order where there is severe limitation of motion of the lumbar spine. 38 C.F.R. §4.71a (2002). Diagnostic Code 5295 (2002), used to rate lumbosacral strain, only allows for a rating higher than 20 percent where there is severe lumbosacral strain characterized by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Id. Meeting either sets of criteria under Diagnostic Code 5292 or Diagnostic Code 5295 would entitle the Veteran to a 40 percent rating; the maximum assignable under either Code. Under Diagnostic Code 5293, used to rate IVDS under the old criteria, a rating higher than 20 percent may only be awarded for severe IVDS symptoms involving recurring attacks and only intermittent relief (40 percent) or pronounced IVDS (60 percent) 38 C.F.R. §4.71a (2002). The Veteran's symptoms do not warrant a rating higher than 20 percent disabling prior to October 31, 2012, or in excess of 40 percent from October 31, 2012 under any of the applicable diagnostic codes under the old regulations. The Veteran is not entitled to a higher rating under Diagnostic Code 5292 (2002) as his limitation of motion cannot be described as severe prior to October 31, 2012. As described above, his degree of forward flexion generally ranged from 50 to 90 degrees over that period. Extension was generally limited to half the normal range of 30 degrees of extension or less and lateral flexion generally ranged from 10 to 20 degrees, with the exception of the September 2009 VA examination data. The Veteran exhibited full rotation in January 2004, January 2006, September 2009, and May 2010. Further, as noted above, Diagnostic Code 5292 provides for a maximum rating of 40 percent so for the period from October 31, 2012, a higher rating under this Code is not possible. While flexion was found to be limited to 50 to 70 degrees, further reduced an additional 15 to 20 degrees upon repetitive motion, in January 2006, the Board finds that this examination data is an anomaly and not reflective of the Veteran's actual impairment at that time as it is inconsistent with the progressively worsening nature of the Veteran's lumbar spine disability when compared to the examination data recorded in September 2009 or May 2010. No justification for any objective worsening at the time of the January 2006 examination is provided. Similarly, the September 2009 examination data showing significantly increased extension and lateral flexion is not found to demonstrate any permanent improvement in comparison to the earlier examination reports where the May 2010 examination data is generally consistent with the examination data reported in January 2004 and January 2006, and no justification for any temporary improvement is provided. Therefore, no separate stage for severe limitation of motion is warranted for the period surrounding the January 2006 VA examination report, and a rating higher than 20 percent disabling is not warranted throughout the period prior to October 31, 2012, under the criteria of Diagnostic Code 5292 (2003). A rating higher than 20 percent is not warranted under DC 5295 (2003), prior to October 31, 2012. There is no evidence in the record of listing of the whole spine to the opposite side. Some degree of lateral flexion has been lost, but the Veteran still exhibits a full lateral rotation. Prior to October 2012, his disk spaces were normal. Furthermore, although the Veteran's disability is progressive, he was only six inches away from being able to touch his toes from a standing position at the September 2009 VA examination. Therefore, the Veteran does not meet the criteria for a 40 percent disability rating under DC 5295 (2003), prior to October 31, 2012, and as noted above, with regard to the period from October 31, 2012, a 40 percent rating is the maximum assignable under this Code. There is evidence of positive straight leg raising tests beginning in January 2006 and, as noted above, loss of lateral flexion, but the presence of these two symptoms do not, on their own, raise the severity of the Veteran's disability to the level of severe where the other listed criteria corresponding to that disability evaluation are not present. Lastly, the Veteran is not entitled to a rating greater than 20 percent under Diagnostic Code 5293 (2002) as the evidence does not support a finding of recurrent attacks of IVDS with only intermittent relief at any time throughout the appellate period, before or after October 31, 2012. The Veteran has reported only occasional flare-ups related to the weather or prolonged sitting, requiring additional medication and rest, and there is no evidence of physician-ordered bed rest in the record. Overall, the Veteran's lumbar spine disability is productive of chronic daily pain that causes functional limitations and only involves acute flare-ups when subject to overuse or associated weather changes. See, e.g., May 2010 VA examination report (noting flare-ups due to weather and prolonged sitting); September 2009 VA examination report (noting weather-related flare-ups); January 2006 VA examination report (reporting constant ache in back); January 2004 VA examination report (reporting regular chronic pain with incidents of increased pain on a weekly basis, lasting for a few hours); April 2002 to August 2002 VA treatment records (showing reports of chronic back pain). Therefore, his service-connected lumbar spine disability is not productive of severe IVDS with recurrent attacks and only intermittent relief. Therefore, the Veteran's residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, with radiculopathy, is found to be 20 percent disabling prior to October 31, 2012, and 40 percent disabling thereafter. The evidence of record does not demonstrate entitlement to a higher rating during either stage under any applicable diagnostic code under the old or the new rating criteria. However, in accordance with the prohibition against assigning a disability evaluation under the amended criteria prior to the effective date of the regulation and the factual findings showing a generally consistent, if gradually progressively worsening, degree of lumbar spine disability prior to October 31, 2012, a 20 percent rating is appropriate under 38 C.F.R. § 4.71a, 5292 (2003), for moderate limitation of motion of the lumbar spine, prior to September 26, 2003. See 68 Fed. Reg. 51,454-51,458. As noted above, a 40 percent rating, but no higher is in order from October 31, 2012. F. Application of Regulations Governing Neurological Disabilities Where a lumbar spine disability is rated under the General Rating Formula, associated neurologic abnormalities are rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Here, as noted above, the Veteran is diagnosed with radiculopathy of the right and left lower extremities. In a January 2013 rating decision, the RO granted service connection for radiculopathy of the right and left lower extremities and assigned a 20 percent disability rating for the right lower extremity and a 10 percent disability rating for the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8720, for neuralgia of the sciatic nerve. The Veteran did not appeal this determination. Peripheral neuralgia is characterized by a dull and intermittent pain and is rated on the same scale as disability of the affected nerve, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Here, the Veteran's lower extremity peripheral neuropathy is diagnosed as radiculopathy, specifically involving S1 dermatomal distribution. See May 2010 VA examination report. Conversely, there is no indication that his sciatic nerve disorder is best characterized as neuralgia, and subject to the rating limitations of that diagnosis under 38 C.F.R. § 4.124. Consequently, the Board finds that the Veteran's bilateral peripheral neuropathy is diagnosed as radiculopathy, affecting the sciatic nerve root, and properly rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, used to rate paralysis of the sciatic nerve. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding that selection of a particular diagnostic code is completely dependent on the facts of a particular case); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (holding that the Board must provide an explanation for selecting a different diagnostic code and explain any inconsistencies). As the ratings for the Veteran's bilateral radiculopathy of the bilateral lower extremities will be assigned under Diagnostic Code 8520 throughout, no inconsistency results from the selection of a different, more appropriate, Diagnostic Code. See Pernorio, 2 Vet. App. at 629. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Under the rating criteria for neurological disabilities of the sciatic nerve, a 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, a 40 percent evaluation is assigned for moderately severe incomplete paralysis, and a 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A maximum evaluation of 80 percent is assigned for complete paralysis of the sciatic nerve. Id. Review of the evidence shows that bilateral lower extremity radiculopathy was first objectively documented during the period on appeal at the May 2010 VA examination. Prior to that time, the Veteran was noted to have suffered a herniated nucleus pulposus with radiculopathy in service, but without residual neurological or radicular impairment to a compensable degree. See October 2012 VA examination report; May 2004 VA medical opinion. In April 2002, the Veteran reported intermittent radiation of pain, tingling, and numbness into the legs, but examination showed grossly normal motor function, sensory function, and deep tendon reflexes. July 2002 VA treatment records also show that the Veteran's neurological function was intact. At the January 2004 VA examination, the Veteran continued to report radiating pain down the lateral thighs, bilaterally, but his neurological functioning was normal upon testing. A May 2004 medical opinion explained that while the Veteran suffered a herniated nucleus pulposus in service, there was likely no evidence of radicular or nerve impingement at that time. Although the straight leg raising test was positive on the right side in January 2006, neuromotor function and sensation to light touch continued to be normal. The Veteran stated that his neurological symptoms made it difficult to walk, but upon examination, his gait was shown to be normal. At the September 2009 VA examination, the Veteran reported back pain radiating to both legs, consisting of numbness or sharp pain, bilaterally, and straight leg raises were positive bilaterally. However, motor strength and sensory function was normal upon testing, deep tendon reflexes were normal upon testing, and the Veteran's gait was observed to be normal by the examiner. However, at the VA examination conducted on May 24, 2010, a decrease in sensation at the bilateral tibia region extending down to the lateral aspect of the foot was noted, involving S1 dermatomal distribution. The diagnosis provided was degenerative disc disease with radiculopathy. Therefore, as of May 24, 2010, objective evidence of impairment caused by radiculopathy was demonstrated. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (directing VA to rate all associated objective neurologic abnormalities separately). Other than the decreased sensation noted, all other motor and sensory examination data was normal. Straight leg raising testing was negative bilaterally, deep tendon reflexes were normal and symmetrical, and his gait was normal. Therefore, the Veteran's radiculopathy of the bilateral lower extremities is best characterized as mild, bilaterally, as of May 24, 2010. There is no evidence of any variance in severity of symptomatology between the right and left extremity at that time, and the findings, limited to one discrete area of sensory impairment bilaterally, were not productive of a moderate degree of incomplete paralysis as the degree of sensory impairment found was relatively limited. However, as of October 31, 2012, the VA examiner found that the Veteran suffered from moderate constant pain, severe parasthesias or dysthesias, and severe numbness of the right extremity. Consequently, the RO assigned a 20 percent disability rating for the right lower extremity as of that date. The Veteran's impairment of the right lower extremity is sensory only. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves (explaining that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree). With regard to the left extremity, his symptoms were found to include constant moderate pain with parasthesias or dysthesias and numbness without motor impairment, and characterized as mild by the most recent VA examiner and the RO in rating this disability from October 31, 2012. The Board finds that the Veteran is entitled to separate 10 percent ratings for radiculopathy of the right and left lower extremities as of May 24, 2010, under 38 C.F.R. § 4.124a, Diagnostic Code 8520. As of October 31, 2012, the Veteran is entitled to a 20 percent disability rating for his radiculopathy of the right lower extremity only, under Diagnostic Code 8520, as assigned by the RO. As noted in the October 31, 2012, examination report, the Veteran has no neurologic abnormalities other than radiculopathy, such that no additional separate ratings are warranted for any additional neurologic abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). III. Extraschedular Consideration Generally, it is sufficient to evaluate a disability using either the corresponding or analogous diagnostic codes contained in the rating schedule. "However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating." Thun v. Peake, 22 Vet. App. 111, 114 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In Thun, the Court concluded that the "determination of whether a claimant is entitled to extraschedular rating under § 3.321(b) is a three-step inquiry." 22 Vet. App. 111, 115 (2008), aff'd, 572 F .3d 1366 (Fed. Cir. 2009). 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." Id. To do this, the Board must determine whether the criteria found in the rating schedule reasonably describe the claimant's disability level and symptomatology. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, VA will move to the second step of the analysis. Id. at 115-16. Under the second prong, the RO and Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Id. In sum, if the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step-to determine whether, "to accord justice," an extraschedular rating must be assigned. Id. The symptoms associated with the Veteran's lumbar spine disability and bilateral lower extremity radiculopathy, such as loss of range of motion, locomotion, fatigueability, and inability to stand or sit for prolonged periods are not shown to cause any impairment that is not already expressly contemplated by Diagnostic Codes 5010-5237 and Diagnostic Code 8720, and the Board finds that the rating criteria reasonably describe his disability. See 38 C.F.R. §§ 4.71a, 4.124a. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial rating greater than 20 percent for residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, prior to October 31, 2012, is denied. A rating of 40 percent, and not higher, for residuals of a herniated nucleus pulposus in service, including chronic lumbar strain, degenerative joint disease, and degenerative disc disease, is granted, as of October 31, 2012, subject to the laws and regulations governing the payment of monetary benefits. A separate rating of 10 percent, and not higher, for right lower extremity radiculopathy, is granted, from May 24, 2010, to October 30, 2012, subject to the laws and regulations governing the payment of monetary benefits. A separate rating of 10 percent, and not higher, for left lower extremity radiculopathy, is granted, from May 24, 2010, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs