Citation Nr: 1317867 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 12-02 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased rating for a lumbar spine disability, currently evaluated as 20 percent disabling. 2. Entitlement to an increased initial rating for radiculopathy of the left lower extremity, currently evaluated as noncompensably disabling prior to March 19, 2003, and as 10 percent disabling from March 19, 2003. 3. Entitlement to a total disability rating based on individual unemployability. (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran had active service from July 1956 to July 1958, September 1960 to March 1970, and from April 1970 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran received a hearing at the RO before the undersigned Veterans Law Judge in November 2012. This claim was remanded for further development in January 2013. All requested development having been completed, this claim now returns before the Board. The Board notes that, in April 2013, the Veteran was granted service connection for radiculopathy of the left lower extremity, evaluated as noncompensably disabling prior to March 19, 2003, and as 10 percent disabling from March 19, 2003. The Board considers this issue part of the Veteran's continued claim for increased rating for his knee disability, and as such, will adjudicate this issue below. The issue of entitlement to TDIU is addressed in the remand portion of this decision. Please note this appeal has been 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. The Veteran's service-connected degenerative joint disease of the lumbar spine has not been shown to be productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or intervertebral disc syndrome for which the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Prior to March 19, 2003, there is no medical evidence of record showing any neurological deficits related to the veteran's service connected back disability. 3. From March 19, 2003, the veteran's symptomatology in his lower left leg related to his service connected low back disability consist of intermittent numbness and pain, consistent with a finding analogous to mild incomplete paralysis of the sciatic nerve; symptoms analogous to moderate incomplete paralysis of the sciatic nerve are not shown. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 20 percent for the Veteran's service-connected degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 2. For the period prior to March 19, 2003, the Board finds that the criteria for a compensable rating, for the veteran's service connected radiculopathy of the left lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2012). 3. For the period from March 19, 2003, the Board finds that the criteria for an evaluation in excess of 10 percent, for the veteran's service connected radiculopathy of the left lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in January 2013 for further development, specifically for a VA examination with opinion to adequately address the current level of severity of the Veteran's condition. The Veteran was provided with a VA examination in March 2013 and his claim was readjudicated in an April 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The Board also points out that, as this is a claim ensuing from the grant of an initial rating, a lessened duty exists. Nevertheless, the Board finds that VCAA letters dated in June 2011 and January 2013, as well as the prior remand in January 2013, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal, in July 2011 and March 2013. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in March 2013. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria The Veteran contends that an increased rating is warranted for his service connected low back disability, including radiculopathy. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, as in this case, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2012). However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (2012). For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2012). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The Board has evaluated the Veteran's disorders under multiple diagnostic codes to determine if there is any basis to increase the assigned ratings. Such evaluations involve consideration of the level of impairment of a Veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The Veteran's service-connected lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative disease of the lumbar spine. The Board notes that, in an April 2013 rating decision, the Veteran was granted a separate 10 percent evaluation for radiculopathy of the left lower extremity as related to the Veteran's lumbar spine disability, therefore, this symptomatology is not at issue in the current case. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242 (2012). Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician 38 C.F.R. § 4.71a , Diagnostic Code 5243 (2012). The Board also notes that the Veteran has been granted service connection for radiculopathy of the left lower extremity as a neurologic complication of his service connected back disability. That disability is rated as noncompensably disabling prior to March 19, 2003, and as 10 percent disabling from March 19, 2003, under 38 C.F.R. § 4.124a , Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis, whereby the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2012). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). 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. C.F.R. § 4.124a. Facts and Analysis Taking into account all relevant evidence, the Board finds that the criteria for an evaluation in excess of 20 percent for the Veteran's low back disability have not been met. In this regard, under the relevant criteria, in order to warrant an increased evaluation, the Veteran would have to be found to have forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome for which the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. These criteria have simply not been met during this period. The Veteran initially had a VA examination in this case in July 2011. At that time, he reported daily low back pain aggravated by standing for greater than one hour, and which occasionally, approximately one day per month, develops into bilateral posterior buttock and leg pain, which lasts several hours. The Veteran reported taking no medications for his back pain. On examination, posture was normal, but with evidence of lumbar flattening. Pain with motion was noted. Range of motion was flexion to 80 degrees, extension to 30 degrees, and left and right lateral rotation and flexion were all 20 degrees. There was objective evidence of pain on active range of motion, but no additional limitations after three repetitions of motion. Reflex testing was normal, as was sensory examination. X-rays taken at that time noted moderate degenerative changes of the lumbar spine. The examiner felt that this disability caused the Veteran to avoid sitting, stooping, and bending activities. During the Veteran's hearing testimony before the undersigned Veterans Law Judge in November 2012, he reported constant, often severe, pain in the lower back. He reported having trouble sleeping in one position, and trouble riding in cars for extended periods. He reported occasional severe flare ups of pain. He related how his back disability generally affected his activities of daily living. A November 2012 MRI of the Veteran's lumbar spine showed a circumferential disc bulge asymmetric to the right at L4-L5 with superimposed mild to moderate hypertrophic changes of the facet joints and ligamentum flavum resulting in moderate right neural foramen stenosis. There was also mild to moderate right lateral recess narrowing. There was moderate left lateral recess narrowing at L5-S1, resulting from moderate hypertrophic changes of the facet joints and ligamentum flavum. The Veteran received a VA examination in March 2013. At that time, the Veteran was noted to have diagnoses of mechanical back strain and L4-S1 disc protrusions. He reported flare ups with walking more than a mile. Forward flexion was found to be to 73 degrees, with objective evidence of painful motion at 60 degrees. Extension was to 20 degrees, with pain at 20 degrees. Right and left lateral flexion was to 20 degrees. Right and left lateral rotation was to 25 degrees. After repetition, post test forward flexion ended at 60 degrees, and post test extension ended at 20 degrees. Lateral flexion and rotation were unchanged. Pain to palpation was noted in the mid lower back. Muscle strength was normal with no evidence of atrophy. Straight leg raising tests were positive. The left lower extremity was noted to have intermittent pain and numbness. No other neurologic findings were noted. The Veteran was also found to have intervertebral disc syndrome, but with no incapacitating episodes over the past few months. The examiner indicated that the Veteran's back condition would likely affect physical and sedentary employment. He was found to have sciatica of the left leg. An April 2013 private consult was received. It indicates that the Veteran reported severe low back and left leg pain. On examination, the axial spine showed normal alignment. There was no CVA tenderness, and no step off along the midline. Lumbar forward flexion was limited to 40 degrees off the vertical with an increase in low back pain. Lateral bending was painful. There was no evidence of atrophy. Neurological testing was normal. Prior X-rays were noted to show endplate edema in the L5-S1 disc space with desiccation of both the L5-S1 and L4-L5 disc space. There was mild left L5-S1 foraminal narrowing at the L5-S1 space on the left. The Veteran was diagnosed with lumbar spine stenosis, degenerative disc disease of the lumbar spine, and lumbar spondylolysis. Thus, reviewing this evidence of record, there is no evidence at any time showing forward flexion, even considering pain, to be less than 40 degrees, and there is no evidence of any ankylosis at any time. While the Veteran does have a diagnosis of intervertebral disc syndrome, there is simply no evidence that it is severe enough to cause incapacitating episodes having a total duration of at least 4 weeks but less during the past 12 months. As such, the Board finds that the criteria for a higher evaluation have not been met, and the preponderance of the evidence of record is therefore again a grant of a higher evaluation for this disability. Further, the Board finds that the Veteran is properly rated as noncompensably disabled for his left lower extremity neuropathy as noncompensably disabled prior to March 19, 2003, and as 10 percent disabled from March 19, 2003. In this regard, reviewing the evidence of record prior to March 19, 2013, a July 2011 VA examination report found no sensory deficits. There is simply no medical evidence of record during this period showing any actual evidence of a neurological deficit. As such, the Board finds that the criteria for a higher evaluation, specifically, mild incomplete paralysis of the sciatic nerve, have not been met, and the Veteran is therefore properly rated as noncompensably disabled for this period. From March 19, 2013, the Board finds that the criteria for a higher evaluation, for the Veteran's left lower extremity neuropathy, have also not been met. In this regard, the Board notes that, in order to warrant a higher evaluation, the Veteran would have to be found to have findings consistent with moderate incomplete paralysis of the sciatic nerve. Reviewing the Veteran's March 2013 VA examination report, the Veteran's left lower extremity was found to have intermittent pain and numbness, and was diagnosed with sciatica. However, the Board finds that intermittent pain and numbness only, not constant pain and numbness, is more consistent with a finding of mild incomplete paralysis of the sciatic nerve, not moderate. In this regard, the Board observes that the VA examiner in May 2013 described the Veterans' left lower extremity numbness and pain to be mild in severity. The Veteran had no other abnormal neurologic abnormalities or findings such as bowel or bladder problems or pathologic reflexes. As such, the Board finds that the criteria for a higher evaluation are not met, and the preponderance of the evidence of record indicates that a higher evaluation is not warranted for radiculopathy of the left lower extremity. The Board also points out it has considered whether the Veteran would warrant any additional separate evaluations for additional neuropathy, however, the Board does not find any medical evidence of record showing any additional neurological symptomatology related to his service connected back disability. In this regard, while the May 2013 examination notes mild left lower extremity radiculopathy, evaluation of the right lower extremity did not reveal any similar symptoms. There was no right lower extremity pain, parenthesis and/or dysesthesias, or numbness. Accordingly, a separate compensable evaluation for neurological impairment of the right lower extremity is not warranted. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and increased ratings must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Other Considerations In reaching the above conclusion with respect to the Veteran's increased rating claims, the Board has not overlooked the Veteran's statements with regard to the severity of his lumbar disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Any lay evidence in this case was provided during VA examinations, clinical visits, and his November 2012 hearing. The Board has considered the Veteran's reports along with findings from the medical evidence. The Board notes the pertinent rating criteria contain diagnostic criteria that requires medical expertise (such as measuring range of motion, determining whether symptoms are indicative of neurological impairment or sufficient enough to warrant the prescription of bed rest, etc.) to evaluate the Veteran's disabilities. The record does not reflect that the Veteran is competent to make such medical opinions regarding the degree of limitation of motion or whether radiculopathy is best characterized as mild, moderate, or severe. Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. For the claims currently on appeal, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected bilateral lumbar spine disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture, and this disability has not caused the Veteran to frequently miss work, nor has it required frequent hospitalizations. The Board, therefore, has determined that referral of this claim for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence of record is against the claim of increased rating for a low back disability, and the benefit-of-the-doubt rule is therefore not for application. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra. As the preponderance of the evidence of record is against this claim, it must be denied. ORDER Entitlement to an increased rating for a lumbar spine disability, currently evaluated as 20 percent disabling, is denied. REMAND As shown above, this appeal arises from the Veterans' claim for an increased rating for his lumbar spine disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. A TDIU which may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Board notes that the Veteran is currently service-connected for bilateral hearing loss, at a 20 percent evaluation, spondylosis of the lumbar spine at a 20 percent evaluation, tinnitus at a 10 percent evaluation, radiculopathy of the left lower extremity at a 10 percent evaluation, and pterygium of the right eye, evaluated as noncompensably disabling. These ratings combine to a 50 percent evaluation. Accordingly, he does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2012). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2012). The Board notes that the Veteran, through correspondence and his hearing testimony before the undersigned Veterans Law Judge in November 2012, has appeared to indicate he may be intending to allege that his service connected back disability prevents him from working. Thus, under Rice, the issue of entitlement to a TDIU is a part of the increased rating claim and is therefore before the Board. As such, the Board finds that this issue should be remanded, in order that the Veteran may be provided with an examination and opinion as to whether his service connected back disability, either alone or in combination with his other service-connected disabilities, render him unemployable. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran complete and return VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding whether the Veteran's service-connected disabilities render him unemployable. In proffering an opinion, the examiner should review the claims file, and then offer an opinion as to whether the Veteran's service-connected back disability, either singularly or jointly with his other service-connected disabilities, render him unable to secure or follow a substantially gainful occupation, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. All opinions expressed should be accompanied by supporting rationale. 3. After completion of any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs