Citation Nr: 1318300 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-38 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine with left leg weakness prior to June 26, 2008. 2. Entitlement to an evaluation in excess of 60 percent for degenerative joint disease of the lumbar spine with left leg weakness from June 26, 2008. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities (BLEs) prior to August 11, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted a 40 percent evaluation for degenerative joint disease of the lumbar spine with left leg weakness effective September 26, 2003. The RO in Honolulu, Hawaii, currently has jurisdiction of the claim. The Veteran requested a hearing before the Board in his November 2005 VA Form 9. The Board informed the Veteran that his requested hearing had been scheduled for January 2009. See October 2008 letter. The Veteran, however, failed to report for the scheduled hearing. As the record does not indicate the Veteran has requested that the hearing be rescheduled, the Board deems the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (2012). The rating assigned to degenerative joint disease of the lumbar spine with left leg weakness was increased to 60 percent, effective June 26, 2008. See September 2008 rating decision. Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board notes that separate 10 percent ratings for radiculopathy of the right and left lower extremities were assigned effective August 11, 2010. See October 2011 rating decision. The Veteran has not voiced his disagreement with the ratings assigned. Therefore, the Board will not consider whether ratings in excess of 10 percent are warranted. It will, however, consider whether the Veteran is entitled to separate ratings prior to August 11, 2010, as mandated by the regulations pertaining to ratings for the spine. The issue has been appropriately added above. The claims were remanded by the Board for additional development in February 2009, June 2010, and April 2012. They have now been returned to the Board for appellate review. The issue of entitlement to service connection for erectile dysfunction, as secondary to service-connected degenerative joint disease of the lumbar spine with left leg weakness, was referred by the Board in April 2012. Review of the record does not reveal that that issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to June 26, 2008, the Veteran's degenerative joint disease of the lumbar spine with left leg weakness was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine, or incapacitating episodes requiring bed rest prescribed by a physician having a total duration of at least six weeks during the past 12 months. 2. The Veteran's degenerative joint disease of the lumbar spine with left leg weakness has not been manifested by unfavorable ankylosis of the entire spine since June 26, 2008. 3. The medical evidence of record dated prior to August 11, 2010, establishes a diagnosis of mild L5 radiculopathy in the right and left lower extremities by electromyograph (EMG) attributed to his service-connected spine disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative joint disease of the lumbar spine with left leg weakness have not been met prior to June 26, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for a rating in excess of 60 percent for degenerative joint disease of the lumbar spine with left leg weakness have not been met as of June 26, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). 3. The criteria for entitlement to service connection for L5 radiculopathy in the bilateral lower extremities, prior to August 11, 2010, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.71a, Diagnostic Codes 5235-5243 Note(1), 4.124a, Diagnostic Code 8516 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in December 2003, and additional notice by a March 2009 letter, as instructed by the Board in its February 2009 remand. The claims were readjudicated in an October 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records; assisted the appellant in obtaining evidence, to include private treatment records; afforded the appellant physical examinations; obtained medical opinions as to the severity of his disability; and afforded the appellant the opportunity to give testimony, though he failed to report for his scheduled hearing. VA also substantially complied with the Board's February 2009, June 2010, and April 2012 remands by asking the Veteran to provide the names and addresses of all medical care providers, both VA and private, who had treated his lumbar spine disability; by scheduling appropriate VA examinations, to include neurological assessment; and by obtaining outstanding VA treatment records. VA also asked the Veteran to indicate if he had changed representatives by completing a new VA Form 21-22, as there was some discrepancy in his representation (March 2005 VA Form 21-22 of record appointed Disabled American Veterans, but September 2008 rating decision referenced Veterans of Foreign Wars). See letters dated March 2009 and April 2012. The Veteran did not provide a new VA Form 21-22, did not submit any private treatment records, and he did not provide the requested information or authorization for the release of any private treatment records. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating (Lumbar Spine) Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Staged ratings are already in effect in this case. When evaluating disabilities of the musculoskeletal system, an evaluation of the extent of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Service connection was initially granted for low back condition with pain and spasm pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5295. A 10 percent rating was assigned effective February 6, 1985. See June 1985 rating decision. The rating was subsequently reduced to zero percent effective July 1, 1986. See March 1986 rating decision. The Veteran filed a claim for increased rating that was received on October 30, 2003, and this appeal ensued from the June 2004 rating decision that recharacterized the disability as degenerative joint disease of the lumbar spine with left leg weakness and assigned a 40 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237, effective September 26, 2003. The rating was subsequently increased to 60 percent, effective June 26, 2008, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. See September 2008 rating decision. The Board notes that the June 26, 2008, effective date assigned by the RO for the 60 percent rating references the date on which a statement from the Veteran requesting an increased rating was received, despite the fact that the issue was already in appellate status at the time the September 2008 rating decision was issued. The Veteran reports pain, a pinched nerve in his left leg that causes numbness, and an increase in medications for back pain and left leg numbness. He indicates that he has lost time from work due to pain and to avoid any accident on the job. See February 2004 VA Form 21-4138. The Veteran also reports that he has a hard time getting up for work and that he lives on pain medication in order to work every day. See VA Form 9 received November 2005. The Board finds these assertions both competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses). Disabilities of the lumbar spine (other than IDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51, 454 (Aug. 27, 2003), now codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. at 51,455 (Supplementary Information). Under Diagnostic Codes 5235-5242, ratings in excess of 40 percent are allowed for unfavorable ankylosis of the entire thoracolumbar spine (50 percent) and for unfavorable ankylosis of the entire spine (100 percent). Any associated objective neurological abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a (2012), Note (1). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a (2012), Note (5). Under the criteria governing disabilities of the lumbar spine, IDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes. This formula provides only one rating in excess of 40 percent, namely a 60 percent rating for IDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2012). An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1) (2012). The medical evidence in this case consists of VA and private treatment records and five VA spine examination reports. During a January 2004 VA examination, the Veteran reported constant pain at a level eight on a scale of ten, that he was only able to sleep for four hours, and that his pain had radiated down his left leg since 1992. He indicated taking Motrin as needed for pain on a daily basis and reported having lost 45 days of work in one year. The Veteran also reported that he had to stop walking after completing one quarter of a mile. Physical examination revealed normal gait and upright posture. Range of motion testing revealed forward flexion to 25 degrees, extension to 15 degrees, left lateral flexion to 19 degrees and right lateral flexion to 15 degrees. Flat lumbar lordosis was noted. Sensory examination was normal, motor examination revealed weakness of the left leg and foot, and reflex examination revealed knee and ankle jerks 5-0. The diagnosis was lumbosacral strain with mild degenerative joint disease. Records from Kaiser Permanente reveal that a March 2004 computed tomography (CT) scan of the Veteran's lumbosacral spine revealed a herniated disc at L3-4, which was impressing on the exiting nerve roots; degenerative changes involving the facet joints of this level causing spinal stenosis; a Schmorl's node noted at the superior end plate of L4; a herniated disc noted at L4-5 with degenerative changes noted at the facet joints causing spinal stenosis; a disc bulge noted at L5-S1; and degenerative changes noted on the facet joints at L5-S1. An April 2004 outpatient progress note reported left sciatica with numbness of the left leg and low back pain on the left with examination with positive straight leg raise on the left and poor range of motion with +4/5 motor of the left foot/great extensors. Some inconsistencies of motor examination of the left upper and lower extremities by serial examinations (also chronic recurrent weakness with no muscle atrophy) was noted, but 0/4 ankle deep tendon reflexes were also noted. An October 2004 VA primary care note revealed musculoskeletal tenderness to palpation of the left paraspinal muscles and flank; decreased flexion, extension, lateral flexion and rotation at the waist to 75 percent of normal; and positive straight leg raise on the left side with pain down the L5 distribution on thigh flexion. Reflexes were 2+ and good bilaterally. The assessment was low back pain. It was noted that the Veteran denied bowel or bladder impairment. An August 2005 primary care note reveals that the Veteran was seen for lower back pain situated on the left lower back radiating down to his left back with numbness. The assessment was lumbar radiculopathy. The Veteran underwent a VA spine examination in September 2005. He reported constant pain at a level 10 out of 10, taking at least two tablets of Tylenol three times a day since 2004, and numbness and tingling on the left side from the buttock all the way to the toe. The Veteran asserted that he could not sit still for more than five minutes, that he could only stand for five to ten minutes, that he could not walk for more than a quarter of a mile and that he has to rest about every 100 feet, and that he had to walk sideways when going up steps. The findings of a magnetic resonance imaging (MRI) report were noted. Physical examination revealed forward flexion initially and with repetition from five to 90 degrees, extension initially and with repetition from 10 to 35 degrees, left to right lateral flexion initially and with repetition from 15 to 30 degrees, and left to right lateral rotation initially and with repetition from five to 45 degrees. There were no additional limitations in range of motion or joint function following repetitions due to pain, fatigue, weakness, lack of endurance, or incoordination. The examiner noted diminished sensation in the left lower extremity with diminished deep tendon reflexes. The assessment was left lower extremity lumbar radiculopathy and low back pain with MRI revealing mild-to-moderate stenosis at L3-4 and L4-5 and neuroforaminal stenosis. An October 2005 neurology consult note reveals that the Veteran reported bilateral lower back pain extending down the left leg. Pain in the back, left worse than right, went down the left lateral leg from the thigh to the calf with numbness and tingling of the left great toe. Walking reportedly made the pain worse and standing and lying down were the best. The Veteran reported wearing a brace and indicated that a bullet proof vest he wore for work as a security guard also helped. He had difficulty sleeping because of pain and awakened to take pain medication. He could only sleep on his back, on the floor. He denied loss of bowel or bladder control. The Veteran was able to walk with normal gait and on heels, but was unable to walk on tiptoe of the left foot secondary to pain. Strength was 3+ to 4- globally with significant hesitation secondary to pain. Deep tendon reflexes were 1+ with reinforcement. Although able to walk normally, the Veteran could not dorsiflex his left foot on command. Pinprick, vibration and cold sensation were decreased on the whole left side, including the face. The Veteran was tender to palpation in the lower back over the paraspinus muscles, left greater than right. No atrophy or fasiculations were noted. The assessment was chronic lower back pain. The examiner noted that the Veteran appeared to have both a skeletomuscular component (the pain in the lower back) as well as a radiculopathy with the pain in the left leg. Signs on physical examination were conflicting, however, and there was likely a disconnect between the Veteran's effort and actual capabilities when asked to strength test. An EMG was ordered during a February 2006 neurology follow-up to better assess radiculopathy. It was noted that the Veteran's right back pain had worsened and he had tingling in his right leg as well, that bilateral straight leg raise was positive, with 60 degrees on the right and 30 degrees on the left, that reflexes were trace at the patella and absent at the Achilles, that Babinski test was absent, and that radiculopathy was difficult to assess given poor cooperation during the examination. A March 2006 EMG contained an impression of mild L5 radiculopathy in the right and left lower extremities. A July 2006 MRI report contains an impression of mild to moderate spinal stenosis at L3-4 and L4-5 from bulging annulus and hypertrophied facets; and neural foraminal stenosis noted at both levels, greater on the right at L4-5. See record from Straub Clinic and Hospital. Another VA spine examination was conducted in July 2008. VA medical records were reviewed but the claims folder was not available. The Veteran reported constant pain at a level two out of 10 with stiffness in the L3-4 area without radiation, radiculopathy or neuropathy. Flare-ups of pain at a level eight out of 10 in the L3-4 area with weakness in the left leg, and to a lesser extent the right leg, with radiation of pain down the left posterior thigh and numbness of the lateral aspect of the left leg near the knee occurring six days per month of insidious onset and lasting one day and relieved by rest, TENS unit, Tylenol with Codeine, and ibuprofen. During flare-up, the Veteran was still able to do activities of daily living. He denied bladder and bowel impairment. The Veteran reported 72 incapacitating episodes and 72 days lost from work in the past 12 months. He indicated wearing a lumbar support and that his back disability affected work because he was limited in sitting to 25 minutes. It also affected his daily activities of doing chores, shopping and exercise. Physical examination revealed normal posture and gait. Range of motion of the thoracolumbar spine against gravity with a back brace on revealed flexion to 30 degrees with pain, extension to 10 degrees with pain, bilateral lateral flexion to 10 degrees with pain, and bilateral lateral rotation to 20 degrees with pain. There was no additional reduced range of motion or joint function following repetition due to pain, fatigue, incoordination, weakness or lack of endurance. Heel walk was normal but the Veteran had difficulty with toe walk. He was able to squat. There was decreased sensation to monofilament and sharp/dull discrimination in the posterior left leg. Straight leg raise testing was negative bilaterally and there was no tenderness to palpation over the area of pain. The Veteran had muscle weakness on extension of both legs. The quadriceps was 4/5, the left hamstring was 4-/5 and the right hamstring was 5-/5. According to the Veteran, his range of motion decreased during, but not prior to, flare-ups, and it was difficult to move although he could get around and was able to do activities of daily living but not chores, shopping or exercise. The Veteran was diagnosed with lumbar spine spinal stenosis with lumbar radiculopathy. The Veteran underwent a VA spine examination in November 2009. His claims folder and medical records were available for review. The Veteran reported constant back pain, 24 hours a day, seven days a week. Without medication it was a 10 out of 10. With medications it was a nine out of 10. The Veteran reported taking several types of medications and indicated that he had missed at least one day of work every two weeks in the last year because of back pain. He indicated there was associated weakness of the left leg, and to a lesser extent to the right leg, with radiation of pain down the posterior thigh into the lateral aspect of the leg and into the feet. He occasionally used a TENS unit, used a back brace at work, which seemed to help, and missed work during flare ups. The Veteran denied bladder and bowel impairment. He reported that his back disability affected his work because he was limited to sitting no more than five to 10 minutes, standing no more than five minutes, and walking no more than 20 minutes. It reportedly took him 55 minutes to walk a mile because he had to constantly rest. His back disability also affected his daily activities, to include chores, shopping and exercise. Physical examination revealed forward flexion to 20 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees and bilateral lateral rotation to 20 degrees. There was pain throughout all of these ranges of motion initially and with repetition. There was no additional limitation in range of motion or joint junction following repetition due to pain, fatigue, weakness, lack of endurance or incoordination. Heel walk was normal but toe walk was difficult. There was decreased sensation to monofilament and sharp/dull discrimination in the posterior left leg. Bilateral straight leg raise testing was negative. There was no tenderness to palpation over the area of pain but muscle weakness on exertion of both legs was noted. The quadriceps and left hamstring were 4/5 and the right hamstring was 5/5. The assessment was lumbar spine spinal stenosis with degenerative disk disease and lumbar radiculopathy. The last VA spine examination took place in August 2010, at which time the Veteran's claims folder was available for review. The Veteran reported constant pain at a level nine out of 10 which was distributed in his lumbar spine and both buttocks. Duration and frequency were both noted to be 24 hours a day, seven days a week, and the Veteran indicated that his pain was severe. He denied any incapacitating episodes of back pain in the last 12 months. Treatment was in the form of medication. The Veteran reported flare-ups on a level 10 in severity that occurred every night and lasted four hours. Movement was a precipitating factor and popping pills was an alleviating factor. The Veteran reported loss of function due to pain during the flare-up, which he dealt with by sitting or relaxing, but denied further loss of range of motion due to pain, fatigue, weakness, speed or incoordination. The examiner noted no further loss of function due to fatigue, weakness, speed or incoordination. The Veteran reported urinary hesitancy and nocturia times four, but no incontinence or urgency. There were no bowel complaints. The Veteran reported the occasional use of a cane, the constant use of a brace, and was able to walk a mile in about 30 minutes. He reported one fall the month prior. The Veteran indicated that walking was ok, but he was a little slow, that he had to lie down on the floor to eat, that he had trouble arising from the toilet, and that his job performance was ok as long as he took his medication. He denied calling in sick. Physical examination revealed a normal spine with symmetrical and unaided gait and normal head position. Range of motion testing revealed forward flexion to 40 degrees, with increased pain from 30 to 40 degrees, extension to 10 degrees, with increased pain from 5 to 10 degrees, bilateral lateral flexion to 20 degrees, with increased pain from 10 to 20 degrees, and bilateral lateral rotation to 30 degrees, with pain at 30 degrees. Objective evidence of pain in the form of grimacing, deep breathing, and pausing before the next movement, and objective evidence of painful motion in the form of deliberate movement, were noted. There was tenderness over the lumbar spine and buttocks, symmetrically, and mild guarding, but no spasm, weakness, atrophy or postural deformities of any kind. Neurological examination was conducted. Sensory examination revealed stocking hypesthesia in both lower extremity and motor examination revealed normal tone and strength and no atrophy or discrepancy in calf measurements. Reflexes were 1+ symmetrically without any localizing signs. Lasegue's sign was 20 degrees bilaterally with reference to the lumbar spine. There was no further loss of range of motion due to pain, fatigue, weakness, lack of endurance, or incoordination with repetitive use. There was no ankylosis. The Veteran was diagnosed with lumbar spinal stenosis L3-4 and L4-5 and lumbar radiculopathy. The examiner indicated that the Veteran did very well keeping up with his physically demanding employment, had not missed work since 1989, and took only ibuprofen for his pain. The examiner indicated that the Veteran was able to continue to be fully employed. In a November 2010 addendum, the examiner noted that EMG was consistent with a polyneuropathy. There was no change to the diagnosis. The preponderance of the evidence of record for the period prior to June 26, 2008, does not support a rating in excess of 40 percent for the Veteran's service-connected degenerative joint disease of the lumbar spine with left leg weakness under Diagnostic Codes 5235-5242. There is no evidence of record that the Veteran's spine, to include the thoracolumbar spine, had ankylosis of any kind. While the Board acknowledges the subjective and objective evidence of limited mobility, the Veteran has never asserted that his spine is completely fixed or that he is unable to flex, extend or rotate his spine. See statements in support of claim; see also VA examination reports; VA treatment records and imaging reports; private treatment records and imaging reports. There is also no evidence for the period prior to June 26, 2008, of incapacitating episodes requiring bed rest prescribed by a physician having a total duration of a minimum six weeks during the past one year. See VA and private treatment records; VA examination reports dated January 2004 and September 2005. In fact, the evidence contains no reference to bed rest and treatment prescribed by a physician, and the Veteran has never asserted that such was prescribed. The preponderance of the evidence of record for the period beginning on June 26, 2008, does not support a rating in excess of 60 percent for the Veteran's service-connected degenerative joint disease of the lumbar spine with left leg weakness under Diagnostic Codes 5235-5242. The Veteran is already in receipt of the maximum (60 percent) rating provided under the Formula for Rating IDS Based on Incapacitating Episodes. In addition, there is no evidence that the Veteran has unfavorable ankylosis of the entire spine so as to support the assignment of the next highest (100 percent) rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board again acknowledges the subjective and objective evidence of limited mobility; however, the Veteran has never asserted that his spine is completely fixed or that he is unable to flex, extend or rotate his spine and the evidence does not support a finding of ankylosis. See statements in support of claim; see also VA examination reports; VA treatment records and imaging reports; private treatment records and imaging reports. Consideration has also been given to any functional impairment and any effects of pain on functional abilities. Under the current rating criteria, normal forward flexion of the thoracolumbar spine is zero to 90 degrees and forward flexion of the thoracolumbar spine to 30 degrees or less merits the assignment of a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243; see also Note (2) 38 C.F.R. § 4.71a; 38 C.F.R. § 4.71a, Plate V (2012). The Board acknowledges that the Veteran exhibited limited and painful motion during the VA examinations (flexion limited to 25 degrees in January 2009, from five to 90 degrees in September 2005, to 30 degrees in July 2008, to 20 degrees in November 2009 and to 40 degrees in August 2010). The fact remains, however, that even if range of motion was limited by pain beyond that shown during examination, the Veteran retains some useful motion of his lumbar spine. Therefore, his limitation of motion is contemplated by the assigned ratings of 40 and 60 percent. In addition, the examiners who conducted the VA examinations in September 2005, June 2008, November 2009 and August 2010 indicated that there were no additional limitations in range of motion of joint function following repetitions due to pain, fatigue, weakness, lack or endurance, or incoordination. In light of the foregoing, the Board finds that a rating in excess of 40 percent is not warranted prior to June 26, 2008, and a rating in excess of 60 percent is not warranted as of that date, under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Service Connection (Radiculopathy of the BLEs prior to August 11, 2010) In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. §§ 3.303, 3.304. As explained above, as part and parcel of an increased rating claim for a spine disability, VA must consider whether the Veteran manifests any associated objective neurological abnormalities so as to warrant a separate rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 Note(1). Here, the Veteran was awarded separate 10 percent ratings for radiculopathy of the right and left lower extremities, effective August 11, 2010. The Veteran, however, has claimed lower extremity weakness since the inception of his increased rating claim. Thus, the Board considers here whether a service connection for separate ratings associated with objective neurological abnormalities of the bilateral lower extremities is warranted prior to August 11, 2010. Resolving all reasonable doubt in favor of the Veteran, the Board concludes they are. Since the inception of his claim for increased rating, the Veteran has reported pain radiating from his back down into his left leg, as well as numbness and tingling into his toes. See VA examination reports dated January 2004 and September 2005; April 2004 record from Kaiser Permanente; October 2004 primary care note; October 2005 neurology consult. In addition to the Veteran's subjective complaints, there has also been objective evidence of motor weakness of the left leg and foot, positive straight leg raise on the left, diminished sensation in the left lower extremity with diminished deep tendon reflexes, and decreased pinprick, vibration and cold sensation. The April 2004 record from Kaiser Permanente documented absent ankle deep tendon reflexes bilaterally. While the Board acknowledges that there were some inconsistencies or conflicting signs during motor examination reported by the medical examiners (see, e.g., April 2004 record from Kaiser Permanente and September 2005 VA examination report) the March 2006 EMG evidence of mild L5 radiculopathy of the right and left lower extremities reveals that any such notations were not justified. In light of the medical evidence establishing a diagnosis of mild L5 radiculopathy of the right and left lower extremities by EMG (all associated with his lumbar spine disability), the Board resolves all reasonable doubt in the Veteran's favor by finding that separate ratings for radiculopathy of the right and left lower extremities are warranted prior to August 11, 2010. Service connection is warranted. Other Considerations Consideration has been given to assigning a staged rating beyond those currently in effect; however, at no time during the period in question has the disability warranted higher ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the demonstrated manifestations of the disability are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. The Board further considered whether the Veteran's increased rating claim reasonably raised a claim seeking a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding a claim of TDIU is inferred in increased rating claims where the Veteran claims his disability affects his employability). Here, the Veteran works in security, a job he maintained since his discharge in 1985. He indicates missing days of work here and there during a spine flare-up, as well as other light-duty accommodations his work has afforded him. While it is clear his spine disability has caused some occupational impairment, there is no indication that his spine disability renders him totally unemployable nor has the Veteran claimed total unemployability. Occupational impairment, such as being placed on light duties at work, are aspects already contemplated in the rating schedule. For these reasons, the Board finds a claim seeking TDIU was not reasonably raised herein. Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claims. ORDER A rating in excess of 40 percent for degenerative joint disease of the lumbar spine with left leg weakness is denied prior to June 26, 2008. A rating in excess of 60 percent for degenerative joint disease of the lumbar spine with left leg weakness is denied from June 26, 2008. Entitlement to service connection for L5 radiculopathy of the right and left lower extremities prior to August 11, 2010 is granted. ____________________________________________ SHEREEN M. MARCUS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs