Citation Nr: 1318727 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-20 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for loss of bladder control, to include as secondary to degenerative joint disease of the lumbar spine. 2. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine. 3. Entitlement to a disability rating in excess of 20 percent prior to May 28, 2008, and in excess of 40 percent thereafter, for radiculopathy of the right lower extremity. 4. Entitlement to a disability rating in excess of 20 percent prior to May 28, 2008, and in excess of 60 percent thereafter, for radiculopathy of the left lower extremity. REPRESENTATION Veteran represented by: Michael Miskowiec, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2008, April 2009, and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The January 2008 decision denied increased ratings for the low back and radiculopathy of the bilateral lower extremities, and denied service connection for loss of bladder control. The Veteran appealed the decision. The April 2009 rating decision granted a 60 percent rating, effective February 11, 2009, for his radiculopathy of the left lower extremity. In a May 2010 rating decision, the effective date for the grant of a 60 percent for radiculopathy of the left lower extremity was changed to May 28, 2008. In that same decision, a 40 percent rating was granted for radiculopathy of the right lower extremity, effective May 28, 2008. Although these were a partial grants of the benefits sought, the Board notes that the Veteran has indicated continued disagreement with the ratings assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board is aware that the RO characterized the Veteran's increased rating claim for the left lower extremity as an earlier effective date claim. The Board notes, however, that the timeframes of these staged ratings continue to be on appeal and are best characterized as entitlement to increased ratings for radiculopathy of the bilateral lower extremities as noted on the title page of this decision. In his substantive appeal, the Veteran requested a Travel Board hearing before a Veterans Law Judge (VLJ) at the Huntington RO. In correspondence dated in August 2011, he withdrew his hearing request. In addition, the Board notes that in multiple statements the Veteran has asserted that his degenerative disc disease of the lumbar spine solely or in conjunction with his other service-connected disabilities render him unemployable, thus raising a claim for a total disability evaluation based on individual unemployability (TDIU). In a November 2010 communication to VA, the Veteran's representative indicated that they wished to withdraw the TDIU claim. Therefore, the TDIU issue is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of entitlement to service connection for loss of bladder control is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire timeframe on appeal, the Veteran's lumbar spine disability has been manifested by forward flexion of less than 30 degrees, but without ankylosis or periods of doctor prescribed bed rest. 2. Prior to May 28, 2008, the Veteran's radiculopathy of the bilateral lower extremities was manifested by incomplete paralysis that is moderate in nature. Moderately severe incomplete paralysis is not shown during this period. 3. Beginning May 28, 2008, the Veteran's radiculopathy of the right lower extremity was manifested by incomplete paralysis that is moderately severe in nature. Severe incomplete paralysis is not shown during this period. 4. Beginning May 28, 2008, the Veteran's radiculopathy of the left lower extremity is manifested by incomplete paralysis that is severe in nature. Complete paralysis is not shown during this period. CONCLUSIONS OF LAW 1. The criteria for an rating in excess of 40 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). 2. The criteria for the assignment of a disability rating in excess of 20 percent prior to May 28, 2008, and in excess of 40 percent thereafter, for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for the assignment of a disability rating in excess of 20 percent prior to May 28, 2008, and in excess of 60 percent thereafter, for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated November 2007, August 2008, and January 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced private counsel and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating, including the specific disability rating percentage the Veteran feels is applicable and warranted. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran appropriate VA examination most recently in February 2009. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. The examination report also discussed the impact of the disabilities on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the February 2009 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's lumbar spine disability has been evaluated as 40 percent disabling under the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 The general rating formula is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Unfavorable ankylosis of the entire spine ............................100 Unfavorable ankylosis of the entire thoracolumbar spine......50 Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine...............................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine..........................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height..................................................10 Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Analysis The Veteran contends that the symptoms related to his low back disability warrant a rating in excess of 40 percent. He also seeks a disability rating in excess of 20 percent prior to May 28, 2008, for his radiculopathy of the left and right lower extremities; and a rating in excess of 40 percent for the right lower extremity and in excess of 60 percent for the left lower extremity, beginning May 28, 2008. He contends that the 40 and 60 percent ratings should be effective October 25, 2007 (the date of the claims for increase). By way of background, service connection for the Veteran's low back disability and radiculopathy of the bilateral lower extremities was originally awarded in a February 2003 rating decision. He was assigned a 40 percent rating for his back and a 20 percent rating for each lower extremity, effective October 2, 2002. He filed his most current request for increase in October 2007. In October 2007 and November 2007 VA treatments record, the Veteran reported a tremendous increase in low back pain with it shooting down his left leg. Physical examination of the spine was positive for bilateral lumbar paraspinous muscle tenderness with spasm on the left. Neurological examination revealed +4/5 muscle strength with right leg extension, dorsiflexion, and plantar flexion. There was positive straight leg testing on the left. The treating professional found a decrease in all ranges of motion in the spine, but did not indicate degrees of limitation. Sensory examination was normal. Deep tendon reflexes were normal in the bilateral patellae, but diminished in the Achilles. The assessment was L5-S1 disc herniation, L4-5 bulging disc with acute chronic back pain. Following his claim for increase, the Veteran was afforded a VA examination of the spine in December 2007. At that time, the Veteran reported constant low back pain that has progressively worsened. The location of the pain was in the mid- to low-spine area with distribution to both legs and numbness and tingling of the feet. He described this pain as a dull ache with sharp and shooting-type pain. He rated the intensity of this pain as a 6 on a scale of 1 to 10 (10 being the most severe pain). The Veteran continued to take prescription pain killers and periodic epidural steroid injections for treatment. He denied any flare-ups and stated that his pain was constant. The pain was aggravated upon bending, lifting, or squatting, but he was able to walk unaided. He noted that 50 yards of walking will take him 5 to 10 minutes to get there. He denied a history of falls, trauma, back surgery, or physician-prescribed bed rest in the past 12-months. Occupationally, the Veteran was a corrections officer at the local prison, but he had difficulty with prolonged walking, standing, or lifting. He had recently been switched to a light duty job. He reported missing two to three days per month from his job. He denied participating in contact sports or other recreational activities. He was completely independent in his activities of daily living, transfer, and ambulation. The Veteran was able to drive, but after an hour, his low back begins to hurt and he must get out of the car and rest a bit. Physical examination of the Veteran revealed an antalgic gait, and he was unable to walk on his toes or heels. He was able to perform tandem walking. On inspection, he has flat lumbar lordosis, and there was mild tenderness to palpation without spasm or weakness in the low back. Range of motion testing revealed forward flexion from 0 to 30 degrees; extension from 0 to 15 degrees; bilateral rotation from 0 to 20 degrees; and bilateral flexion from 0 to 20 degrees-with pain and discomfort noted at all endpoints. Repetitive testing did not change the ranges of motion. The Veteran had objective evidence of painful motion and tenderness without spasm or weakness. He had no muscle atrophy. The Veteran could not lay flat on the examination table due to his low back pain. Sensory examination as to pain, light touch, temperature, and vibration was diminished in both lower extremities. Muscle strength in the bilateral lower extremities was 4/5 (with 5 being normal) with normal tone, bulk, dexterity, and coordination. Ankle and knee jerks were absent, bilaterally, but straight-leg testing was positive, bilaterally. The examiner indicated that it would be "pure speculation" to state whether the Veteran would have weakness, incoordination, lack of endurance, or decreased range of motion during a period of flare-up. A November 2007 MRI revealed a persistent medium-sized central L5-S1 herniation, unchanged from prior study and normal post-surgical scaring that is probably insignificant. The examiner continued the diagnosis of degenerative disc disease of the lumbosacral spine with central disc bulging. He also indicated that the Veteran had radiculopathy of the bilateral lower extremities affecting the sciatic nerve. The Board is aware that the November 2007 VA examiner was unable to determine whether the Veteran would meet the DeLuca factors during a flare-up. The Board does not find this statement worrisome inasmuch as the Veteran clearly reported no flare-ups of his low back disability. As such, the November 2007 examination is adequate for purposes of rating the Veteran's disability. During treatment at VA on May 28, 2008, the Veteran reported a considerable increase in low back pain. He endorsed increased left leg numbness from his buttocks to his outer three toes. His left calf was noticeably smaller than his right calf, but both calves have decreased in size over time. The Veteran was unable to get up on his toes on the left. He also had a sore knot in the left lower back area, and had difficulty pulling the toes on his left foot back because of pain. The Veteran endorsed bilateral leg weakness after walking and experiencing muscle spasms when he misses his meds. He denied bowel problems, but continued to experience urinary symptoms. Neurological examination revealed normal patellar deep tendon reflexes, but absent bilateral Achilles deep tendon reflexes. Left lower extremity motor strength was +4/5 and it was 5/5 on the right. There was atrophy of the left calf noted, and it measured at 17 inches while the right calf was 17 3/4 inches. In an April 2008 treatment record, the Veteran was noted to have recently received an epidural injection. He reported marked loss of feeling in his left foot and calf, which hindered his ability to walk. A private neurological evaluation in May 2008, reflected the Veteran's continued complaints of low back pain and weakness in the bilateral lower extremities. Physical examination revealed an antalgic gait towards the left with some decrease in left toe walking. He stated that range of motion in the back is "essentially nil" because of the Veteran's back and left buttock pain. There was no midline pain, trigger point, or spasm noted. Straight and cross leg raises were negative. Motor examination was notable for weakness in the left plantar flexors (4 to 4+/5) with gross atrophy involving the left calf. Sensory examination was notable because of decreased pinprick sensation over the bilateral feet and calves. Deep tendon reflexes were notably absent at the bilateral ankles, but the Veteran did have palpable pulses in both feet. An April 2008 MRI revealed a moderate to severe degree of focal degeneration of the L5-S1 disc, very low-grade retrolisthesis of L5 on S1, and congenitally small canal. There was a low density material seen in the spinal canal that could be evidence of a disc herniation or scar. In August 2008, the Veteran underwent a L5-S1 decompression with a left transforaminal lumbar interbody fusion, pedicle screw instrumentation, and posteriolateral fusion. In a post-operative visit, the Veteran reported significant improvement in his left lower extremity pain, but continued to have chronic low back ache as well as numbness in the left foot. Physical examination showed some tenderness to palpation of the bilateral sacroiliac joints, but there was no evidence of paraspinous muscle spasm. His extremities were nontender, and without clubbing, cyanosis, or edema. His strength was 5/5 except for 4+/5 in his left hamstring, 4/5 in his left foot dorsiflexors, and 3/5 in his left plantar flexors. The treating professional indicated that the Veteran continued to demonstrate some left calf atrophy, with decreased sensation in his left calf. His gait demonstrated a mild, left foot drop. In a January 2009 statement from the Veteran's spouse, she indicated that he experiences such muscle wasting in his left leg that sometimes he is unable to lift his foot off the floor. She indicated that he cannot even walk through the grocery store and is unable to sleep at night due to his muscle spasms. In February 2009, the Veteran underwent another VA examination of the spine, during which he reported constant, dull/toothache-like pain in his back. He stated that it increases with movement or sitting for extended periods of time, and he rated this pain as 4 out of 10 in terms of severity. The Veteran continued to use prescription pain relievers, steroid injections, as well as a TENS unit for treatment. He endorsed numbness, paresthesias, fatigue, stiffness, weakness, spasms, and pain. The location of the pain was in the lumbar region, constant, achy to sharp, moderate to severe, with radiation to the bilateral lower extremities. The Veteran described the radiating pain as sharp and shooting that causes numbness and spasms. He endorsed periods of daily, severe flare-ups of pain lasting from 2 to 3 hours. The precipitating factors were increased activity, and sitting, standing, or bending for extended periods of time. He stated that his alleviating factors were medications as described above. During a flare-up, the Veteran reported being unable to perform his daily activities. He also reported 2 weeks of bed rest after the August 2008 fusion surgery and 5 weeks of being off of work. The Veteran currently used a cane to help with ambulation, but he did not bring it to the appointment. He also indicated that he was unable to walk more than a few yards. Physical examination revealed normal posture, symmetry, head position, and gait. There were no abnormal spinal curvatures, nor was there evidence of spasms in the lower spine. There was evidence of bilateral atrophy, guarding, painful motion, tenderness and weakness. There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Motor examination showed hip flexion at 4/5 on the left and 3/5 right; hip extension 4/5 on the left and 3/5 right; knee extension 5/5 on the left and 3/5 on the right; ankle dorsiflexion 4/5 on the left and 5/5 on the right; ankle plantar flexion 4/5 on the left and 3/5 on the right; and great toe extension 4/5 on the left and 3/5 on the right. The examiner indicated that the Veteran's muscle tone was abnormal as his left thigh is 21 1/2 inches and his right thigh is 23 inches, and his left calf muscle is 13 1/2 inches and his right calf muscle is 16 inches. Sensory examination showed no sensation to vibration, pain, touch or position on the left, but it was impaired in all these senses on the right. The examiner described the Veteran's toes of the left foot as having no sensation and they are "curled under" with the foot "turned inward." All reflexes were normal except for the bilateral knee jerk, bilateral ankle jerk, and plantar flexion. Range of motion testing showed flexion from 0 to 30 degrees, extension from 0 to 10 degrees, and bilateral flexion and bilateral rotation from 0 to 15 degrees. There was objective evidence of pain on active range of motion and additional limitations after three repetitions. Following repetitive motion, flexion was from 0 to 20 degrees, extension from 0 to 5 degrees, and bilateral flexion and rotation to 12 degrees. The examiner found no instances of incapacitating episodes due to IVDS. In the last 12-month period, the Veteran indicated that he lost 2 months of work due to his back surgery. The examiner continued the diagnosis of degenerative joint disease of the lumbar spine, status-post spinal fusion L5-S1 with limited range of motion. He also indicated that the Veteran had muscle atrophy in the left lower extremity. The examiner indicated that the Veteran's back disability caused significant effects on his usual occupation resulting in being assigned different duties and increased absenteeism. Due to his back disability, the Veteran had decreased mobility, manual dexterity, and problems with lifting, carrying, and reaching. He had decreased strength and pain in the left lower extremity. The examiner indicated that the Veteran had been given a life-long restriction of lifting no more than 50-75 pounds, and he would not likely be able to return to his job as a corrections officer. His back disability also severely impacted his ability to do chores, shopping, or exercise. He was unable to participate in sports, but was moderately impacted in his ability to participate in recreational activities/traveling. His disability moderately impacted his ability to bath and dress himself, but it did not impact his ability to feed himself, toilet, or groom. The Veteran was also afforded a peripheral nerves examination in February 2009, during which he reported increased numbness and tingling in his bilateral lower extremities since the August 2008 surgery. He reported no feeling in the toes on the left foot. Again, he had numbness, paresthesias, and pain shooting down the bilateral extremities. He also described tingling and occasional burning sensation in the feet. Muscle strength was +3 in the left lower muscles and +4 in the right lower muscles. Sensory functioning revealed decreased sensation in the right lower extremity to vibration, pain, light touch, and positional sense. The left lower extremity sensory examination showed absent sensation to vibration, light touch, and position sense, and decreased sensation to pain. The examiner indicated that the affected nerves were the sciatic nerves. Left plantar dorsiflexion was abnormal, but right plantar flexion was normal. Again, the examiner confirmed the presence of muscle atrophy, but no abnormal muscle tone/bulk, or abnormal movements. The nerve disorder does not impact the function of any joint. The examiner indicated that the Veteran's gait was abnormal and he walks with his left toes curled under. The examiner diagnosed the Veteran as having radiculopathy of the bilateral lower extremities secondary to his service-connected back disability. The examiner provided a similar analysis of the occupational and social impact as in the spine examination, but noted that he would have some problems keeping sedentary employment unless he was able to get up and move from time to time. In April 2009, the Veteran underwent follow-up treatment for his surgery. He again described low back and leg pain. He stated that he has atrophy in his left leg and buttock, and his legs tire easily. The more he walks, the more numbness he gets in his toes on his left foot. He is unable to get on his toes on his left foot and continues to have an atrophic left calf muscle despite exercise. He still has a left foot drop. The Veteran also submitted statements from his coworkers indicating his continued difficulty performing his duties as a correctional officer. They described his complaints of significant pain and discomfort and his request for others to help him complete his duties. Low Back Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his low back disability. The evidence of record, including the competent lay statements provided by the Veteran, his spouse, and his colleagues, does not show unfavorable ankylosis of the spine to warrant a rating in excess of 40 percent. The evidence of record clearly shows that the Veteran's lumbar spine disability is manifested by forward flexion of less than 30 degrees. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of ankylosis required to warrant the next higher evaluation for the period considered. For reference, ankylosis is when the joint at issue is fixed in place, preventing all motion. This clearly has not been the case with the Veteran's disability. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's back disability. Again, at no time on appeal has the Veteran been shown to have ankylosis of the spine. Additionally, throughout the timeframe on appeal, the Veteran has not had doctor-prescribed bed rest for treatment of his lumbar spine. Indeed, post-surgery he was required to be on bed rest, and this was addressed in his temporary total evaluation during a period of convalescence from August 2008 to September 2008. However, apart from surgical recovery, bed rest has not been prescribed. As such, a rating in excess of 40 percent for IVDS symptoms is not warranted either. In sum, a clear preponderance of the evidence is against a disability rating in excess of 40 percent during the applicable period, as the Veteran's complaints of limited motion and functional impairment are adequately accounted for. The objective clinical findings consistently fail to show that his disability meets the criteria for a disability rating in excess of 40 percent, namely ankylosis. Hence, the Board must conclude that those findings outweigh his lay assertions regarding severity. Accordingly, a disability evaluation in excess of 40 percent for the Veteran's chronic degenerative disc disease and degenerative joint disease of the lumbosacral spine is denied. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Again, neurological deficits have been separately evaluated and are discussed in detail below. Radiculopathy Ratings for the Veteran's service-connected radiculopathy of the bilateral lower extremities are currently staged, with the date of May 28, 2008 as the key point at which increased ratings have been shown. Each period is discussed in turn below. Prior to May 28, 2008 Prior to May 28, 2008, separate 20 percent ratings are in effect for radiculopathy in the right and left lower extremities. Upon careful review of the record, the Board finds that the separate 20 percent ratings are appropriate prior to May 28, 2008, as the Veteran's radiculopathy of the bilateral lower extremities was no more than moderate in nature. In particular, the Veteran experienced numbness and shooting pain in both legs, but there were no complaints of muscle atrophy, nor was any shown during his December 2007 VA examination. The December 2007 VA examiner did note some diminished sensation in both lower extremities. However, muscle strength was nearly normal, at 4 out of 5, with noted normal tone, bulk, dexterity, and coordination. These symptoms do not rise to the level contemplated in the higher, 40 percent rating pursuant to DC 8520. Rather, they were mostly sensory in nature, which means that the rating can be for, at most, the moderate degree. As such, the evidence of record, including the lay statements, does not show that his radiculopathy was more than moderate in nature prior to May 28, 2008. Since May 28, 2008 Since May 28, 2008, the Veteran's right lower extremity radiculopathy has been rated at 40 percent, and his left lower extremity radiculopathy has been rated at 60 percent. The RO determined these ratings based on VA treatment dated May 28, 2008. At that time, the Veteran was first shown to have muscle atrophy in both calves, with the left being worse than the right. He also endorsed weakness in the legs after walking. With respect to the right leg, the Board finds that the evidence does not show the disability is manifested by symptoms that are analogous to severe incomplete paralysis of the right sciatic nerve with marked atrophy, as required for the next higher rating. Specifically, while some muscle atrophy is shown, the clinical evidence does not show that it is marked muscle atrophy like in the left leg. His right calf has decreased in size, from 17 3/4 inches to 16 inches, but not as significantly as it did on his left, where it went from 17 inches to 13 1/2 inches. Sensory functioning remained decreased in the right foot and calf, though still present, and motor strength remained relatively normal. For these reasons, the Board finds that the currently assigned 40 percent rating adequately compensates the Veteran's moderately severe incomplete paralysis. With respect to the left leg, the Board finds that the evidence does not show the disability is manifested by symptoms that are analogous to complete paralysis, as required for the maximum rating of 80 percent. Clinical records for this appeal period reflect marked muscle atrophy and severe symptoms. Atrophy was found, given the decrease in calf muscle size from 17 inches to 13 1/2 inches. It is consistently noted that the Veteran has no sensory feeling in his left foot and calf, which hindered his ability to walk. There is also clear evidence of left foot drop, but it does not dangle such that it totally prevents mobility. These symptoms are indicative of severe incomplete paralysis of the left sciatic nerve with marked atrophy. The evidence does not show, however, an inability to move his muscles below the knee, nor does he have weakened or loss of flexion of the knee. The February 2009 examiner specifically found that the nerve disorder does not impact the function of any joint. As such, the evidence does not show that he experiences complete paralysis of the left sciatic nerve to warrant the 80 percent rating. Rather, the 60 percent rating adequately compensates for his symptoms. Ultimately, the Board finds that the preponderance of the evidence is against the Veteran's claim for ratings in excess of 20 percent each for the bilateral lower extremities, prior to May 28, 2008, or in excess of 40 percent (right lower extremity) and 60 percent (left lower extremity) beginning May 28, 2008. The Board notes that the Veteran is competent to report that his disabilities are worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluations for the Veteran's back disability and radiculopathy of the bilateral lower extremities are appropriate. The evidence preponderates against a finding that an increased ratings are warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The Board concludes that, based on the foregoing evidence, assignment of staged ratings, or additional staged ratings, is not for application. Hart, 21 Vet. App. at 505. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected low back and bilateral lower extremity disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports pain, limitation of motion, weakness, numbness, and difficulty walking. As discussed above, the current 40 percent rating for his low back disability and the staged ratings for his radiculopathy are adequate to fully compensate the Veteran for his pain, limited motion, neurological problems, and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine is denied. A disability rating in excess of 20 percent, prior to May 28, 2008, and in excess of 40 percent thereafter, for radiculopathy of the right lower extremity is denied. A disability rating in excess of 20 percent, prior to May 28, 2008, and in excess of 60 percent thereafter, for radiculopathy of the left lower extremity is denied. (CONTINUED ON NEXT PAGE) REMAND The Board finds that further development is necessary prior to adjudication on the Veteran's claim of entitlement to service connection for loss of bladder control. During October 2007 and November 2007 VA treatments, the Veteran reported a problem with urination. He described leaking and not noticing until he becomes wet. The treating professional diagnosed him as having obstructive uropathy, but did not provide an opinion for its etiology. Noted was a 6-month history of urinary incontinence. During a December 2007 VA examination, the Veteran reported urinary urgency and problems with urinary incontinence. The examiner found no objective pathology of a urinary disability/loss of bladder control. The examiner opined that the Veteran's claimed loss of bladder control was not caused by his service-connected degenerative disc disease of the lumbar spine. He did not, however, provide any opinion with respect to the aggravation aspect of a secondary service connection claim. As such, this opinion is inadequate. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any outstanding treatment records related to the Veteran's loss of bladder control. 2. The Veteran should be afforded a new VA examination to determine the nature and etiology of his loss of bladder control. The claims file (including any pertinent evidence in any electronic claims file) and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should respond to the following inquiries: a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's loss of bladder control was caused or related to his military service? b) Is it at least as likely as not that the Veteran's loss of bladder control was caused by his service-connected degenerative joint disease of the lumbar spine with radiculopathy of the bilateral lower extremities? c) Is it at least as likely as not that the Veteran's loss of bladder control was aggravated beyond its normal progression by his service-connected degenerative joint disease of the lumbar spine with radiculopathy of the bilateral lower extremities? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide an explanation for all opinions rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Thereafter, readjudicate the Veteran's service connection claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs