Citation Nr: 1318053 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-21 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disability, to include as secondary to a lumbosacral spine disability. 2. Entitlement to a rating in excess of 40 percent for a lumbosacral spine disability. 3. Entitlement to an effective date earlier than December 8, 2010, for the grant of separate ratings for left and right lower extremity radiculopathy. 4. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 5. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Lori Chism, Attorney ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1973. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded to the RO via the Appeals Management Center, in Washington, D.C. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran's lumbosacral disc disease is manifested by symptoms including back pain and limitation of motion. 2. The Veteran's left and right lower extremity radiculopathy claims arise from his June 6, 2006, claim of entitlement to an increased rating for his lumbosacral disc disease. 3. The Veteran's left and right lower extremity radiculopathy arose no later than January 28, 1993. 4. The Veteran's left lower extremity radiculopathy is manifested by mild incomplete paralysis in the left leg. 5. The Veteran's right lower extremity radiculopathy is manifested by mild incomplete paralysis in the right leg. 6. An October 2007 rating decision denied service connection for depression. 7. Evidence associated with the claims file since the October 2007 rating decision was not of record at the time of the October 2007 rating decision and relates to an unestablished fact necessary to substantiate the Veteran's psychiatric disorder claim. 8. The preponderance of the competent evidence of record is against a finding that the Veteran has a current diagnosis of a psychiatric disorder which is related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a lumbosacral spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for an effective date of September 24, 2005, for the grant of separate ratings for left and right lower extremity radiculopathy, have been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400 (2012). 3. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. Evidence submitted to reopen the claim of entitlement to service connection for a psychiatric disability is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 6. A psychiatric disability was not incurred in or aggravated by active service, nor is it proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Specifically, the Veteran was notified in letters dated in June 2006, July 2008, and October 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Low Back Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In resolving the factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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 (2012). 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 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for lumbosacral disc disease was granted by a September 2005 rating decision and a 40 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5243, effective February 15, 2005. As the Veteran is in receipt of a 40 percent rating for his back disability for the entire period relevant to the claim on appeal, an increased rating can only be awarded if the Veteran has (1) unfavorable ankylosis of the thoracolumbar spine, (2) incapacitating episodes having a total duration of at least six weeks during the previous 12 months, or (3) associated neurologic abnormalities. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Accordingly, the Board will only discuss below the medical evidence which specifically relates to those points. A July 2005 VA medical report stated that, on physical examination, the Veteran had decreased sensation to pinwheel and pinprick, greater on the right than the left. In a September 2005 VA spine examination report, the Veteran denied experiencing any incapacitating episodes in the previous year. On physical examination, the Veteran had flexion to 40 degrees, with pain, and extension to 5 degrees, with pain. There was loss of pinprick sensation to the bilateral anterior and posterior thighs and legs, and to the dorsum and volar surfaces of the feet. An October 2005 VA medical report stated that, on physical examination, the Veteran had almost no active range of motion in his back and was unable to flex, extend, or rotate. The assessment was chronic low back pain and right leg radicular symptoms that were secondary to two failed back surgeries. A November 2005 VA medical report stated that, on physical examination, the Veteran had a lot of tenderness in his leg. VA medical reports dated in January 2006, February 2006, and October 2006 stated that the Veteran experienced pain in his right leg. A May 2006 note from a private physician stated that the Veteran had experienced incapacitating episodes seven or eight times during the previous 12 months. In a February 2007 VA general medical examination report, the Veteran complained of daily radiating pain down the right leg, but denied numbness, urinary incontinence, and fecal incontinence. He reported that he had had no incapacitating episodes in the previous year. On physical examination, the Veteran had flexion to 30 degrees, with pain at 30 degrees, and extension to 5 degrees, with pain at 5 degrees. He had good pinprick sensation in both legs. VA medical reports dated in April 2007 and July 2007 stated that, on physical examination, the Veteran's leg pain was the same. A May 2007 note from a private physician stated that the Veteran had experienced incapacitating episodes seven or eight times during the previous 12 months. In a November 2008 private medical report, the Veteran complained of back pain with radiation into the left buttock and leg. On physical examination, the Veteran had decreased pinprick sensation in the left leg which appeared to be in the L4-5 distribution. A January 2009 private medical report stated that the Veteran underwent operative procedures on his lumbar spine for symptoms which included severe back and leg pain. In a May 2009 private medical report, the Veteran reported that on some days he experienced pain down his back and left leg. In a May 2009 VA spine examination report, the Veteran complained of pain radiating to both legs but denied bladder complaints, bowel complaints, and erectile dysfunction associated with his back condition. On physical examination, the Veteran had flexion to 30 degrees and extension to 5 degrees. Sensory examination was normal. In a September 2009 private medical report, the Veteran reported that he continued to experience pain in his back and legs, specifically his right leg. In a March 2010 private medical report, the Veteran complained of occasional pain in his right leg. A June 2010 VA peripheral nerves examination report stated that the Veteran had a history of radicular symptoms, including numbness, since 2005. The Veteran complained of consistent right leg pain and numbness, but denied incontinence. On physical examination, the Veteran had flexion to 20 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 10 degrees. He had normal skin sensation in his legs, feet, and toes. The examiner stated that the Veteran had difficulty cooperating throughout the examination and Waddell's sign was positive. The diagnosis stated that there was no neurological evidence of radiculopathy or sciatica. In a December 2010 VA spine examination report, the Veteran denied experiencing a history of urinary incontinence, urinary urgency, or erectile dysfunction. The examiner stated that the Veteran had not had any incapacitating episodes of spine disease. On physical examination, there was no ankylosis of the cervical or thoracolumbar spine. On sensory examination, the Veteran's lower extremities were normal in all areas. The Veteran had thoracolumbar spine flexion to 35 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 15 degrees. A nerve conduction study was performed, and the impression was abnormal study showing acquired demyelinating neuropathy, affecting the left peroneal and both tibial nerves, of unknown etiology. In an April 2012 VA medical report, the Veteran denied experiencing numbness, tingling, or loss of bladder or bowel functions. An October 2012 VA back examination report stated that, on physical examination, the Veteran had thoracolumbar spine flexion to 60 degrees, with pain at 50 degrees; extension to 30 degrees, with pain at 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 15 degrees; right lateral rotation to 30 degrees or greater; and left lateral rotation to 30 degrees or greater. On sensory examination, the Veteran did not have sensation to light touch in the upper anterior thighs, knees, lower legs, and ankles. However the Veteran was negative for radicular pain or any other signs or symptoms due to radiculopathy. He also did not have any other neurologic abnormalities or findings related to his thoracolumbar spine condition, including bowel or bladder problems. An October 2012 VA peripheral nerves conditions examination report gave a diagnosis of resolved right L5 radiculopathy and left L3 radiculopathy secondary to a 1989 work-related back injury per electromyography and nerve conduction studies of October 2012. After physical and diagnostic examination, the examiner stated that the Veteran did not have complete or incomplete paralysis of any nerve. The examiner stated that the Veteran's neurological examination was not consistent with neurological dermatomes. The Veteran's service-connected lumbosacral disc disease is rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 states that intervertebral disc syndrome can be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IDS), whichever results in a higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavourable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula (2012). The medical evidence of record shows that the Veteran's lumbosacral disc disease is manifested by symptoms including back pain and limitation of motion. However, there is no medical evidence of record that the Veteran's thoracolumbar spine has ever been unfavorably ankylosed. The medical evidence of record consistently demonstrates that the Veteran retains at least modest portions of his range of motion and there is no medical report of record which states that the Veteran experiences spinal ankylosis of any kind. Therefore, the Board finds that a rating in excess of 40 percent is not warranted for the orthopedic manifestations of the Veteran's lumbosacral disc disease under Diagnostic Code 5243. The General Rating Formula states that associated objective neurologic abnormalities should be rated separately from the orthopedic abnormalities. 38 C.F.R. § 4.71a, General Rating Formula (2012). The medical evidence of record shows repeated complaints and objective findings of bilateral leg neurological disorders. However, service connection for left and right lower extremity radiculopathy is already in effect and the ratings assigned for those disabilities are discussed separately below. In addition, there is no medical evidence of record that the Veteran experiences any additional neurological manifestations of his lumbosacral disc disease, beyond those contemplated by the ratings assigned for his service-connected radiculopathy. Accordingly, the Board finds that additional separate ratings are not warranted for any other neurological manifestations of the Veteran's lumbosacral disc disease. Under the Formula for Rating IDS, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IDS (2012). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IDS at Note (1) (2012). The medical evidence of record shows that the Veteran has a current diagnosis of degenerative disc disease. However, the medical evidence of record does not show that the Veteran has ever been prescribed best rest by a physician for a period of at least six weeks during any 12 month period. The only medical evidence of record that states that the Veteran has experienced any incapacitating episodes is in the May 2006 and May 2007 notes from a private physician. Those notes both stated that the Veteran had experienced incapacitating episodes seven or eight times during the previous 12 months. However, the notes did not report the duration of the episodes, and the preponderance of the evidence of record does not demonstrate that the examiner was referring to seven to eight weeks as opposed to seven to eight days. A copy of the May 2006 note submitted to VA in March 2009 included photocopies of page 395 from the 2005 edition of Title 38 of the Code of Federal Regulations. Those photocopies include a notations stating that the Veteran had been incapacitated for seven to eight weeks in the previous year. However, there is no signature on those photocopies, nor any other indication that the notations were made by a physician, as opposed to the Veteran or his representative. The Board notes that previously submitted copies of the May 2006 note did not include those copies, which the Board finds to be probative evidence that the additional notations were not made by the physician who wrote the May 2006 note. In any case, the Board notes that there are numerous medical records from that private physician associated with the claims file. The records show that the private physician treated the Veteran extensively for his back disability, and those treatments are noted on each private medical report. None of those medical reports includes a prescription for bed rest by the private physician. Thus, the Board finds that the preponderance of the evidence of record demonstrates that the private physician did not prescribe bed rest to the Veteran for treatment of his back disability. Accordingly, regardless of however many period of incapacitation that the private examiner may have indicated in the May 2006 and May 2007 notes, none of those periods qualify as an incapacitating episode for VA purposes. 38 C.F.R. § 4.71a, Formula for Rating IDS at Note (1) (2012). Therefore, a rating in excess of 40 percent is not warranted for the manifestations of the Veteran's lumbosacral disc disease under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Veteran has reported low back pain on use, a contention which is substantiated by the evidence of record. However, the medical evidence of record does not show that pain results in additional limitations in range of motion due to pain which are sufficient to be analogous to unfavorable ankylosis of the thoracolumbar spine. Joint pain alone, including pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the preponderance of the medical evidence of record is against a finding that the Veteran experiences pain which causes additional limitation of motion beyond that contemplated by the currently assigned rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board finds that a rating in excess of 40 percent is not warranted for the lumbosacral disc disease. This claim has also been reviewed with consideration of whether staged ratings are warranted. While there may have been occasional fluctuations of the Veteran's lumbosacral disc disease symptoms, the evidence shows no distinct periods of time during which his symptoms have varied to such an extent that a rating in excess of 40 percent would be warranted under any diagnostic code. 38 U.S.C.A. § 5110 (West 2002); Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, rating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities rating for lumbosacral disc disease inadequate. The Veteran's lumbosacral disc disease was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's lumbosacral disc disease is manifested by symptoms including back pain and limitation of motion. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for his lumbosacral disc disease. A rating in excess of the currently assigned rating is provided for certain manifestations of lumbosacral disc disease, but the medical evidence does not show that those manifestations are present. The Board finds that the criteria for a 40 percent rating for the Veteran's lumbosacral disc disease reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular rating is adequate and no referral is required. To the extent that the Veteran's lumbosacral disc disease impacts his employability, that issue is covered by the Veteran's claim of entitlement to TDIU, which is being remanded. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board finds that the preponderance of the evidence is against the claim for an increased rating for lumbosacral disc disease. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Massey v. Brown, 7 Vet. App. 204 (1994). Lower Extremity Radiculopathy Effective Date Generally, the effective date of a rating and award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). An informal claim is a communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2012). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2012). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b) (2012). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129 (1992). 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 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2 (2012). Service connection for left and right lower extremity radiculopathy was granted by a March 2012 rating decision and a 10 percent rating was assigned for each under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective December 8, 2010. The Board notes that claim has been adjudicated on the basis of an earlier effective date for a claim for service-connection, based on a statement received from the Veteran on September 1, 2009, which stated that he was seeking service connection for all residuals of his service-related spinal condition, including neurological residuals. However, all neurological symptoms of the Veteran's lumbosacral disc disease are specifically considered as part of the rating assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Accordingly, any associated neurological symptoms were already for consideration in conjunction with the Veteran's lumbosacral disc disease claim, which was filed on June 6, 2006. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Therefore, the Board finds that the Veteran's left and right lower extremity radiculopathy claim arose from the claim of entitlement to an increased rating for his lumbosacral disc disease, not from his September 2009 statement. Therefore, the Board finds that June 6, 2006, is the date of the Veteran's claim for the left and right lower extremity radiculopathy issues on appeal as they are shown to be neurological symptoms of the lumbosacral spine disability. Including the one-year exception, the proper effective date would be the earliest date on and after June 7, 2005, on which the evidence demonstrated that it was factually ascertainable that the Veteran had left and right lower extremity radiculopathy which is related to a back disability which was incurred in active service. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). However, service connection for lumbosacral disc disease itself was only granted by a September 23, 2005, rating decision. While the Veteran's June 6, 2006, claim was received within one year of the September 2005 rating decision, it did not express any dissatisfaction or disagreement with the September 2005 rating decision, and instead specifically stated that the Veteran's condition had worsened. Therefore, the June 2006 statement constitutes a claim for an increased rating, not a notice of disagreement with the September 2005 rating decision. 38 C.F.R. § 20.201 (2012). Therefore, the Veteran did not file a notice of disagreement with the September 2005 rating decision and as such it is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). As that rating decision is final, the Veteran's effective date cannot be prior to September 24, 2005, notwithstanding the one-year exception. 38 C.F.R. § 3.400 (2012). The Board finds that the proper effective date for the Veteran's left and right lower extremity radiculopathy claims is the earliest date on and after September 24, 2005, on which the evidence demonstrated that it was factually ascertainable that he had left and right lower extremity radiculopathy which was related to his service-connected back disability. The medical evidence of record includes numerous reports of lower extremity pain and numbness. In addition, there are numerous diagnoses of lower extremity radiculopathy and sciatica. The diagnoses date at least as far back as January 28, 1993, when the Veteran was found to have right L5 radiculopathy after an abnormal electromyogram. The medical evidence of record documents complaints of similar symptoms prior to January 28, 1993, and it is possible that radiculopathy was diagnosed at an even earlier date. However, the Board need not determine the precise date on which entitlement arose, as the evidence of record clearly indicates that it was not later than September 24, 2005. Again, the general rule regarding the effective date of a rating and award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012). In this case, the date of receipt of the Veteran's claim is June 6, 2006, and entitlement arose no later than January 28, 1993. Accordingly, the date of receipt of the Veteran's claim, June 6, 2006, is the later of the two dates. In addition, the exception to the general rule allows the effective date for the Veteran's lower extremity radiculopathy claims to be extended back to September 24, 2005. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). Therefore, September 24, 2005, is the appropriate effective date for the grant of separate ratings for left and right lower extremity radiculopathy. The Board has also considered whether an effective date prior to September 24, 2005 is warranted. However, there is no evidence of record that the Veteran ever filed a notice of disagreement with the rating assigned for his lumbosacral disc disease in the September 23, 2005, rating decision. Accordingly, that decision is final, and an effective date prior September 24, 2005, for the grant of separate ratings for left and right lower extremity radiculopathy, is not warranted. 38 C.F.R. § 3.400 (2012). In reaching this decision, the Board finds that the preponderance of the evidence is against the claim for an effective date prior September 24, 2005, for the grant of separate ratings for left and right lower extremity radiculopathy. Therefore, to that extent, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lower Extremity Radiculopathy Initial Rating The appeal of the Veteran's lower extremity radiculopathy claims is based on the assignment of initial ratings following an initial award of service connection for left and right lower extremity radiculopathy. Therefore, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial ratings were assigned and should be the evidence used to decide whether an original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson v. West, 12 Vet. App. 119 (1999). A March 2012 rating decision granted separate ratings for left and right lower extremity radiculopathy and assigned and a 10 percent rating for each under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective December 8, 2010. The effective date of the separate ratings for the Veteran's left and right lower extremity radiculopathy will be made effective September 24, 2005, by this decision. The medical evidence of record includes numerous complaints of lower extremity neurological symptoms throughout the entire period on appeal, including pain and numbness. Under Diagnostic Code 8520, incomplete paralysis of the sciatic nerve warrants a 10 percent rating when it is mild in degree. A 20 percent rating is warranted for incomplete paralysis which is moderate in degree. A 40 percent rating is warranted for incomplete paralysis which is moderately severe in degree. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). With respect to diseases of the peripheral nerves, the term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2012). The medical evidence of record shows that the Veteran's bilateral radiculopathy of the lower extremities has been manifested by mild incomplete paralysis in each leg throughout the entire period on appeal. Initially, the Board notes that the October 2012 VA peripheral nerves conditions examination report stated that the Veteran's radiculopathy had resolved. However, the Board is without the jurisdiction to determine whether the Veteran's bilateral lower extremity ratings warrant reduction, as no such claim has been appealed. 38 C.F.R. §§ 20.101; 20.200 (2012). In any case, the fact remains that the Veteran consistently and repeatedly reported experiencing bilateral lower extremity neurological symptoms prior to October 2012. While there is evidence of record that the Veteran may have another neurological disorder which is unrelated to his back disability, namely acquired demyelinating neuropathy, there is no medical evidence currently of record that would allow the Board to differentiate between any symptoms related to his low back radiculopathy and that related to any nonservice-connected neurological disorder prior to December 8, 2010. After that date, separating the symptoms is irrelevant, as the Board is without jurisdiction to determine whether a rating below 10 percent is warranted. For the period prior to December 8, 2010, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board finds that a 10 percent rating is appropriate for the Veteran's left and right lower extremity radiculopathy for the entire period on appeal. However, the Board finds that a 20 percent rating is not warranted at any point during the period on appeal because there is no medical evidence of record which characterizes the Veteran's bilateral lower extremity radiculopathy symptoms as greater than mild in degree. There are no medical reports of record during the period on appeal which characterize the severity of the Veteran's radiculopathy symptoms as moderate or worse. On the contrary, VA peripheral nerves examination reports dated in June 2010 and October 2012 both stated that the Veteran did not experience radiculopathy at all. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's left or right lower extremity radiculopathy disabilities at any point during the period on appeal. This claim has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's neurological symptoms, the evidence shows no distinct periods of time when his symptoms have varied to such an extent that a rating in excess of the currently assigned ratings would be warranted for under any diagnostic code. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.344 (2012); Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities rating for left and right lower extremity radiculopathy inadequate. The Veteran's left and right lower extremity radiculopathy were rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's left and right lower extremity radiculopathy is manifested by mild incomplete paralysis in each leg. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability ratings for his left and right lower extremity radiculopathy. A rating in excess of the currently assigned rating is provided for certain manifestations of neurological disorders of the extremities, but the medical evidence does not show that those manifestations are present. The criteria for 10 percent ratings for each of the Veteran's left and right lower extremity radiculopathy reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular ratings are adequate and no referral is required. To the extent that the Veteran's left and right lower extremity radiculopathy impact his employability, that issue is covered by the Veteran's claim of entitlement to TDIU, which is being remanded below. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The Board finds that the preponderance of the evidence is against the claim for increased ratings. The medical evidence of record does not show findings that meet the criteria for initial ratings in excess of 10 percent for left or right lower extremity radiculopathy. Therefore, the claims for initial ratings in excess of 10 percent are denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Massey v. Brown, 7 Vet. App. 204 (1994). New and Material Evidence An unappealed rating decision in October 2007 denied service connection for depression on the basis that there was no evidence that the Veteran experienced a psychiatric disorder in-service and he denied mental problems in a February 2007 VA general medical examination report. The relevant evidence of record at the time of the October 2007 rating decision consisted of the Veteran's service medical records, VA and private medical records dated from prior to the Veteran's active service until May 2007, and Social Security Administration disability records. The Veteran did not file a notice of disagreement after the October 2007 rating decision. Therefore, the October 2007 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2012). Although the RO adjudicated the Veteran's claim on a direct basis in August 2010, that decision is not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. In September 2009, a claim to reopen the issue of entitlement to service connection for a psychiatric disorder was received. Evidence of record received since the October 2007 rating decision includes a December 2009 VA mental disorders examination report. The December 2009 VA mental disorders examination report is new in that it was not of record at the time of the October 2007 decision. In addition, the December 2009 VA mental disorders examination report gave an Axis I diagnosis of adjustment disorder with depressed mood and anxiety. Therefore, the Board finds that medical report is material. The claim was previous denied because the evidence did not show that the Veteran had a diagnosed psychiatric disability. Therefore, the new evidence includes competent and credible evidence which relates to an unestablished fact necessary to substantiate the Veteran's claim and the new evidence creates a reasonable possibility of substantiating the claim. As the new evidence is also material, the case must be reopened. Molloy v. Brown, 9 Vet. App. 513 (1996). To that extent only, the claim is allowed. Service Connection for a Psychiatric Disability Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). A diagnosis of a mental disorder must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125 (2012). The Veteran's service medical records are negative for any complaints or diagnosis of a psychiatric disorder. After separation from service, in a March 1990 private medical report, the Veteran complained of a sleep disturbance. After physical examination, the assessment included rule out adjustment reaction with mixed emotional features. In a February 2007 VA general medical examination report, the Veteran denied experiencing any mental problems. In a December 2009 VA mental disorders examination report, the Veteran complained of depression and anxiety secondary to his service-connected back disability. After a review of the Veteran's reported history and a mental status examination, the Axis I diagnoses were adjustment disorder with depressed mood and anxiety, and alcohol abuse in remission. The examiner opined that that the Veteran's adjustment disorder related primarily to frustrations with the disability claims process, worries about the state of the world, worries about his family's health, and primarily to difficulties with finances. The examiner stated that while it was possible that some of the Veteran's depressed mood and anxiety related directly to his actual physical condition, he did not focus much on it when describing his problems and instead focused on the issues listed above. As a result, the examiner found that it was less likely than not that his adjustment disorder was related to his sevice-connected physical problems. In a December 2010 VA general medical examination report, the Veteran denied a history of all psychiatric symptoms, including depression and anxiety. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran has a current diagnosis of a psychiatric disorder which is related to service or to a service-connected disability. The Veteran's service medical records are negative for any complaints or diagnosis of a psychiatric disorder. While the medical evidence of record shows that the Veteran received a diagnosis of a psychiatric disorder in December 2009, there is no evidence of record that a psychiatric disorder was diagnosed prior to December 2009, over 36 years after separation from service, and there is no medical evidence of record that the Veteran experienced any symptoms which were possibly related to a psychiatric disorder prior to March 1990, over 16 years after separation from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the competent medical evidence of record demonstrates that the Veteran's currently diagnosed psychiatric disorder is not related to service or to a service-connected disability. The only medical opinion of record which discusses the etiology of the Veteran's psychiatric disorder is the December 2009 VA mental disorders examination report. That report stated that it was less likely than not that the Veteran's adjustment disorder was related to his service-connected physical problems, based on the Veteran's own commentary regarding his frustrations and issues. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, lay etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran claims that his psychiatric disability is related to his service-connected lumbosacral disc disease. However, the Veteran is not competent to state whether any current diagnosed psychiatric disorder is related to service or to a service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, as the Veteran has never received a diagnosis of a psychosis, his statements are not competent to demonstrate continuity of symptomatology of his psychiatric disorder. 38 C.F.R. § 3.307, 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran has a current diagnosis of a psychiatric disorder which is related to service or to a service-connected disability. The evidence also does not show that any psychosis manifested to a compensable degree within one year following separation from service. Therefore, the Board finds that service connection for a psychiatric disability is not warranted. The Board finds that the preponderance of the competent evidence weighs against the Veteran's claim for service connection for psychiatric disability. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability and the claim is reopened. To that extent only the claim is allowed. Service connection for a psychiatric disability is denied. A rating in excess of 40 percent for lumbosacral disc disease is denied. An effective date earlier of September 24, 2005, but not earlier, for the assignment of separate ratings for left and right lower extremity radiculopathy, is granted. An initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. An initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. REMAND Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the 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). In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Individual unemployability must be determined without regard to any nonservice connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is currently in effect for lumbosacral disc disease, rated 40 percent; left lower extremity radiculopathy, rated 10 percent; right lower extremity radiculopathy, rated 10 percent; and a surgical scar, rated 0 percent. The Veteran's combined disability rating is 50 percent, including the bilateral factor. 38 C.F.R. § 4.25, Table I (2012). Accordingly, even when all of the Veteran's disabilities are considered to have arisen from a single etiology, the percentage criteria of 38 C.F.R. § 4.16(a) have not been met. A claim for TDIU may be referred to the Compensation and Pension Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b) (2012). The evidence of record shows that the Veteran has been unemployed for over 20 years. In addition, there are numerous medical reports of record that state that the Veteran is unemployable due to the symptoms he experiences from his service-connected lumbosacral disc disease. Accordingly, the Board finds that this evidence shows the type of situation that warrants consideration of an extraschedular rating under the provisions of 38 C.F.R. § 4.16(b). Accordingly, the issue must be remanded so that it may be referred to the Compensation and Pension Service for extraschedular consideration. Accordingly, the case is remanded for the following actions: 1. Refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration on the issue of entitlement to TDIU. 38 C.F.R. § 4.16(b) (2012). 2. Thereafter, implement the decision of the Director, Compensation and Pension Service, if so warranted. If the claim on appeal remains denied, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs