Citation Nr: 1319164 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-07 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for lumbar spine degenerative spondylosis with intervertebral disc syndrome (IVDS), rated 40 percent disabling prior to February 1, 2013, and 60 percent disabling since that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to July 1973. This matter initially came before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO granted an increased (40 percent) rating for lumbar spine degenerative spondylosis, effective September 8, 2004. The Veteran testified before the undersigned at an October 2008 hearing. A transcript of that hearing has been associated with the claims folder. In December 2008, the Board denied the claim for an increased rating for lumbar spine degenerative spondylosis. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By an August 2010 memorandum decision, the Court set aside the Board's December 2008 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. In its August 2010 decision, the Court determined that the Board erred by not considering whether the evidence reasonably raised a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In September 2012, the Appeals Management Center (AMC) granted TDIU, effective November 2, 2007. Although the one-year period to submit a notice of disagreement with the September 2012 decision has not yet expired, there is no indication in the claims folder that the Veteran has expressed any disagreement with that decision. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (notice of disagreement (NOD) regarding disability compensation level [effective date] separate from prior NOD regarding issue of service connection); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Consequently, the Board does not have jurisdiction to address any downstream element associated with the now granted TDIU. In May 2011 and December 2012, the Board remanded this matter for further development. In March 2013, the AMC granted an increased (60 percent) rating for lumbar spine degenerative spondylosis with IVDS, effective February 1, 2013. The AMC also granted service connection for radiculopathy of the right and left lower extremities and assigned initial 10 percent disability ratings for each lower extremity from May 5, 2010, to February 1, 2013, and initial 20 percent disability ratings for each from February 1, 2013. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative spondylosis with IVDS has not caused ankylosis, and it did not result in at least 6 weeks of incapacitating episodes in any 12-month period prior to February 1, 2013. 2. Lumbar radiculopathy of the right lower extremity was manifested by no more than mild sciatic neuritis for the entire claim period prior to February 1, 2013 and has been manifested by no more than moderate sciatic neuritis since that date. 3. Lumbar radiculopathy of the left lower extremity was manifested by no more than mild sciatic neuritis for the entire claim period prior to February 1, 2013 and has been manifested by no more than moderate sciatic neuritis since that date. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent prior to February 1, 2013 and a rating in excess of 60 percent since that date for lumbar spine degenerative spondylosis with IVDS have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, DC 5243 (2012). 2. The criteria for a separate initial 10 percent rating for right lower extremity radiculopathy, for the claim period prior to May 5, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520 (2012). 3. The criteria for a separate initial 10 percent rating for left lower extremity radiculopathy, for the claim period prior to May 5, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520. 4. The criteria for higher ratings for right or left lower extremity radiculopathy since May 5, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant 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 claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman, 19 Vet. App. at 473. In a pre-adjudication letter dated in October 2004, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for lumbar spine degenerative spondylosis with IVDS. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's veteran status has been substantiated. He was notified of all other elements of the Dingess requirements, including the disability rating and effective date elements of his claim, in a March 2006 letter. The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Additionally, the Veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), 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. Id. Furthermore, the Court directed that as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The October 2004 letter told the Veteran that evidence of worsening could substantiate the increased rating claim. He was notified in the letter that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples. The letter also stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened. The March 2006 letter also explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment. There was a timing deficiency in that the March 2006 letter was sent after the initial adjudication of the Veteran's claim. This timing deficiency was cured by readjudication of the claim in a February 2008 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, Social Security Administration (SSA) disability records, and all of the identified relevant post-service VA treatment records and private medical records. In addition, the Veteran was afforded VA examinations to assess the severity of his service-connected low back disability. In its May 2011 and December 2012 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things: ask the Veteran to identify any additional relevant VA or private treatment records, obtain any additional relevant VA treatment records (including from the VA Medical Center in Columbia, South Carolina (VAMC Columbia) dated since July 2010) and any additional relevant private treatment records for which appropriate release forms were submitted, obtain all available SSA disability records, and schedule the Veteran for a VA examination to assess the severity of his service-connected low back disability. As explained above, all relevant post-service VA treatment records (including from VAMC Columbia) and SSA disability records have been obtained and associated with the claims file. In a January 2013 letter, the Veteran was asked to identify the name and location of any VA or private medical facility from which he has received treatment for his service-connected low back disability. He was also asked to complete the appropriate release form so as to allow VA to obtain any identified relevant private treatment records. Copies of the release form (VA Form 21-4142) were included with the letter. The Veteran did not respond to the January 2013 letter. Additionally, a VA examination was conducted in February 2013 to assess the severity of his service-connected low back disability. This examination was thorough, contained all pertinent findings, and responded to the inquiries posed by the Board. Accordingly, the AOJ complied with all of the Board's pertinent May 2011 and December 2012 remand instructions and VA has no further duty to obtain any additional records or conduct additional examinations with respect to the claim being decided herein. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's lumbar spine degenerative spondylosis with IVDS is currently rated under 38 C.F.R. § 4.71a, DC 5243 as IVDS. Under the applicable criteria, IVDS is evaluated under the general formula for rating diseases and injuries of the spine (general rating formula) or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5243. Under the formula for rating IVDS based on incapacitating episodes, 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 maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. A note to DC 5243 provides that for the purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1) (2012). Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a maximum 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243. During an October 2004 VA examination the Veteran reported that he experienced intermittent low back pain that occasionally radiated to the left leg. The pain was aggravated by excessive physical activity. He also experienced difficulty walking during periods of pain and walked with a limp on the left leg during such periods. He treated the pain with medications, but he had not undergone any surgeries, he had not received any epidural injections or physical therapy, and he did not use any assistive devices. The range of motion of his spine did not change with repetitive use and he had not experienced any symptoms of IVDS during the previous year. He was employed as a truck driver and his occupation was affected when he had to drive for long hours. Also, he was unable to perform activities of daily living, which involved bending or stooping maneuvers. The ranges of motion of the lumbar spine were recorded as flexion to 30 degrees without pain and to 40 degrees with pain, extension to 10 degrees without pain and to 20 degrees with pain, lateral flexion to 15 degrees without pain and to 25 degrees with pain, and rotation to 15 degrees without pain and to 20 degrees with pain. The ranges of motion were not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no straight leg raise sign. Achilles reflexes were absent and there was a distal sensory loss in a stocking type pattern compatible with peripheral neuropathy. The physician who conducted the examination concluded that there was no evidence of any lumbosacral spine disease, but that there was evidence of peripheral neuropathy. VA treatment records dated from November 2004 to May 2005 and the Veteran's April 2005 notice of disagreement (VA Form 21-4138) include reports of constant and progressively worsening low back pain. There was also occasional weakness of the left leg which would cause it to give out. The back pain occasionally radiated down the left leg, was aggravated by cold weather, bending, twisting, sitting, and standing following prolonged sitting, and was alleviated by rest. However, the pain was not alleviated by medication. There were periodic flare ups of pain. Examinations revealed that the Veteran had a normal gait. However, straight leg raise testing was occasionally positive on the left and there was occasional palpable tenderness of the right lumbar paraspinals at L4-5. Patellar and Achilles deep tendon reflexes were occasionally somewhat diminished (1+) on the right, but reflexes of the lower extremities were otherwise normal, muscle strength in the lower extremities was normal (5/5) bilaterally, sensation to light touch was intact in both lower extremities, and the Veteran had good balance. X-rays revealed osteophytes, endplate sclerosis, and disc space narrowing. There was no listhesis or loss of height of any of the vertebral bodies and there was normal gross alignment without subluxation, dislocation, or acute fractures. The Veteran was diagnosed as having low back pain, lumbago, and degenerative joint disease of the lumbar spine. A December 2005 VA examination report indicates that the Veteran reported occasional flare ups of back pain (9/10 in intensity) which were caused by bending, lifting, or walking more than a half mile. Such flare ups occurred approximately two times per year, lasted for 3 to 4 weeks at a time, and were associated with "a sensation" that radiated into the left buttock. He did not report any other neurologic complaints, he had not undergone any surgeries, injections, or physical therapy, and he did not use any assistive devices. His back disability affected his occupation as a truck driver and had required him to miss approximately 30 days of work. The ranges of motion of the thoracolumbar spine were recorded as flexion to 70 degrees without pain and to 88 degrees with pain, extension to 10 degrees without pain and to 20 degrees with pain, right lateral flexion to 12 degrees without pain and to 24 degrees with pain, left lateral flexion to 18 degrees without pain and to 26 degrees with pain, and right and left rotation to 40 degrees without pain. The ranges of motion were not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. There was tenderness throughout the lumbar spine, but there were no spasms and straight leg raises were negative bilaterally. Deep tendon reflexes were normal (2+) and symmetric throughout, muscle strength was normal (5/5) with adequate bulk and tone throughout, and sensation to light, sharp, and dull touch and vibration was intact. Diagnoses of degenerative joint disease of the lumbar and thoracic spine were provided. The nurse practitioner who conducted the examination concluded that the objective data did not support a diagnosis of peripheral neuropathy. VA treatment records dated from December 2007 to May 2008, a letter from the Veteran's wife dated in December 2007, and the testimony given during the October 2008 hearing include reports of occasional back spasms and locking, limitation of spinal motion, and constant low back pain which was dull in nature, 5-10/10 in intensity, and occasionally alleviated by medications. The pain also occasionally radiated to both legs and was sometimes associated with a tingling sensation. The Veteran experienced urinary symptoms, but such symptoms were related to a non-service-connected prostate disability. During the October 2008 hearing, he and his wife estimated that he had spent approximately 60 days in bed during the previous year due to his back disability. He had contacted his treatment providers by telephone on various occasions and was reportedly advised to stay in bed due to his back symptoms. His back disability also negatively impacted his employment as a truck driver. Examinations revealed diffuse tenderness in the lumbosacral spine and pain in the left sacroiliac joint area which increased with movement. There were no muscle spasms and no crepitus and straight leg raise testing was negative. Motor strength was normal (5/5) in all extremities, sensation was intact and symmetrical, and deep tendon reflexes were normal (2+). X-rays revealed degenerative joint disease. The Veteran was diagnosed as having low back pain and degenerative joint disease. During a March 2009 VA aid and attendance examination the Veteran reported that he was able to bear weight, but that he experienced difficulty balancing and used a cane and wheelchair for ambulation. He was able to walk around the house and up to one block with the cane and he left the house approximately every 2 weeks to attend appointments with his doctors. However, he spent the majority of his time in bed due to back pain. Although he experienced urinary incontinence, such problems were due to a non-service-connected prostate disability. He was diagnosed as having chronic low back pain due to degenerative joint disease. Medical records dated from April 2010 to May 2012, a July 2011 VA examination report, and a treatment record from Palmetto Health dated in January 2012 reveal that the Veteran reported constant low back pain which was 7/10 in intensity, occasionally radiated to the right leg, was dull/radiating/sharp in nature, and was occasionally associated with leg weakness (which caused him to fall and necessitated the use of a cane on a daily basis), tingling, numbness, and foot drag. The pain was aggravated by bending and was alleviated with medications and occasional steroid injections. He underwent a lumbar laminectomy in January 2012. Examinations revealed mild tenderness of the left lower lumbar spine, equivocal straight leg raising, and an antalgic gait. Sensation to light touch and pinprick was impaired along the L4-S1 dermatomes on the right, some motor strength was slightly impaired (4/5) on the right, and Achilles and patellar reflexes were somewhat diminished (1+) on the right. However, sensation, motor strength, and reflexes were otherwise normal in the lower extremities. X-rays and MRIs revealed multilevel degenerative changes, disc protrusions and herniations, and degenerative stenosis. The Veteran was diagnosed as having lumbar radiculopathy. A report of a VA examination dated in February 2013 includes a report of increasing low back pain. Flare ups of back symptoms limited the Veteran's ability to walk or bathe himself. He regularly used a cane to ambulate. Ranges of motion of the thoracolumbar spine were recorded as flexion to 30 degrees and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees. There was pain at the end points of all ranges of motion. The ranges of spinal motion remained the same following repetitive use, there were no additional limitations in the ranges of motion following repetitive use, and there was no functional loss or functional impairment of the thoracolumbar spine following repetitive use. There was midline and paraspinal lumbar tenderness as well as guarding or muscle spasms. Straight leg raising tests were positive bilaterally. Muscle strength in the lower extremities was normal (5/5), there was no muscle atrophy, knee and ankle reflexes were normal (2+) bilaterally, and sensation in the lower extremities was normal bilaterally. However, there were symptoms of radiculopathy involving the sciatic nerve, including severe and constant pain in both lower extremities and moderate intermittent pain, paresthesias/dyesthesias, and numbness in both lower extremities. Overall, the radiculopathy was moderate bilaterally. Also, the Veteran had experienced at least 6 weeks of incapacitating episodes of IVDS during the previous 12 months. There were scars related to the Veteran's service-connected back disability. However, none of the scars was painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). Diagnoses of lumbar degenerative disc disease at L5-S1 and degenerative stenosis at L3-4 through L5-S1 were provided. The pain and radiculopathy associated with this disability made walking and sitting difficult and prevented the Veteran from lifting more than 5 pounds. A. Non-neurologic Impairment The above evidence reflects that there is a low back disability with pain, tenderness, guarding/spasms, and limitation of motion. Also, the Veteran has provided subjective reports of locking. However, there is no evidence of any spinal ankylosis at any time during the claim period. Where, as here, a veteran is in receipt of the maximum schedular rating based on limitation of motion of the thoracolumbar spine and a higher rating under the general rating formula requires ankylosis, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59) are not for application. See Johnston, 10 Vet. App. at 85. A 40 percent rating is the maximum schedular rating for limitation of spinal motion under the general rating formula. A higher rating under the general rating formula is only warranted if there is evidence of ankylosis. As there is no evidence of spinal ankylosis at any time during the claim period, a higher rating for the Veteran's service-connected low back disability according to the general rating formula is not warranted at any time during the claim period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5243. With respect to the formula for rating IVDS based on incapacitating episodes under DC 5243, the Veteran is already in receipt of the maximum schedular rating (i.e. a 60 percent rating) under this criteria for the claim period since February 1, 2013. As for the claim period prior this date, the Veteran reported during the October 2008 hearing that he had occasionally contacted his various treatment providers and was advised to stay in bed due to his back disability. He estimated that he had spent approximately 60 days in bed during the previous year. Also, he reported during the March 2009 VA aid and attendance examination that he spent the majority of his time in bed due to back pain. The Veteran is competent to report the symptoms of his back disability and of the need to remain in bed due to such symptoms. However, the above evidence reflects that he only reportedly received informal recommendations to stay in bed from his treatment providers and that he voluntarily remained in bed to alleviate his back symptoms. Such evidence does not support a finding of any incapacitating episodes of IVDS, as that term is defined in the regulations (i.e. bed rest that is prescribed by a physician). Additionally, the objective evidence does not otherwise reflect any physician prescribed bed rest during the period prior to February 1, 2013. For example, the October 2004 VA examination report specifically indicates that the Veteran had not experienced any symptoms of IVDS during the previous year. Thus, as there is no evidence of any incapacitating episodes of IVDS (as that term is defined in the regulations) during the claim period prior to February 1, 2013 and as the Veteran is already in receipt of the maximum 60 percent schedular rating under DC 5243 on the basis of incapacitating episodes of IVDS during the remainder of the claim period, a higher rating for the Veteran's service-connected low back disability according to the formula for rating IVDS based on incapacitating episodes under DC 5243 is not warranted at any time during the claim period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5243. As noted above, there are scars associated with the service-connected low back disability. The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As his claim for an increased rating was received in September 2004, the amendments are not applicable in this instance and will not be applied in this case. In order to warrant a compensable rating under the criteria for rating scars in effect prior to September 23, 2008, a scar would need to involve the head, face or neck and have at least one character of disfigurement (DC 7800); be deep or cause limited motion and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be superficial and unstable (DC 7803); be superficial and painful on demonstration (DC 7804); or cause some limitation of the function of the part affected (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (effective August 30, 2002). In this case, the February 2013 VA examination report reveals that there were scars related to the Veteran's service-connected back disability. However, none of the scars was painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). Thus, as the scars do not involve the head, face, or neck, do not involve an area or areas of at least 39 square centimeters, are not unstable or painful, and do not have any disabling effects, a compensable rating for scars is not warranted under DCs 7800-7805 at any time during the claim period. B. Neurologic Impairment There is evidence of a neurologic impairment of both lower extremities associated with the service-connected low back disability. Paralysis of the sciatic nerve is rated as follows: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. The rating schedule provides guidance for rating neurologic disabilities. With regard to rating neurologic disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 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. The above-noted evidence reflects that during the period prior to February 1, 2013, the Veteran experienced radiculopathy of the lower extremities which was manifested by pain that occasionally radiated to the buttocks and legs bilaterally, somewhat diminished (1+) to absent Achilles and patellar reflexes, sensory loss and tingling in the legs, leg weakness, foot drag, and slightly impaired (4/5) muscle strength. Given these findings and the otherwise normal neurologic findings, the neurologic manifestations of the Veteran's low back disability were at worst mild in each lower extremity prior to February 1, 2013. Separate 10 percent ratings have already been assigned under DC 8520 on the basis of mild incomplete paralysis of the sciatic nerve for the period from May 5, 2010 to February 1, 2013. As the neurologic manifestations of the Veteran's low back disability were at worst mild prior to February 1, 2013, ratings in excess of 10 percent under DC 8520 are not warranted at any time from May 5, 2010 through January 31, 2013. With respect to the claim period prior to May 5, 2010, the physician who conducted the October 2004 VA examination concluded that there was evidence of peripheral neuropathy. However, the examiner who conducted the December 2005 VA examination noted that the objective data did not support a diagnosis of peripheral neuropathy. The Board acknowledges that the Veteran's claims file was not available for review at the time of the October 2004 VA examination and that the examiner who conducted that examination made some erroneous findings (e.g. that there was no evidence of any lumbosacral spine disease). Also, many of the objective neurologic findings made during the period prior to May 5, 2010 were within normal limits. Nevertheless, the Veteran consistently reported occasional radiation of his low back pain to the lower extremities during this period as well as occasional leg weakness. He is competent to report such neurologic symptoms of the lower extremities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence that explicitly contradicts his reports, his reports are not inconsistent with the evidence of record, there is objective evidence of impaired deep tendon reflexes and sensory loss during this period, and he has subsequently been diagnosed as having lumbar radiculopathy involving both lower extremities. Hence, the Board finds the Veteran's reports of neurologic symptoms during this period to be credible. Given the Veteran's reports of at most mild impairment during the period prior to May 5, 2010 and the otherwise normal neurologic findings during that period, and resolving reasonable doubt in his favor, separate 10 percent ratings for lumbar radiculopathy of the right and left lower extremities under DC 8520 are warranted for the claim period prior to May 5, 2010. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.124a, DC 8520. As for the claim period since February 1, 2013, the Veteran is already in receipt of separate 20 percent ratings under DC 8520 on the basis of moderate incomplete paralysis of the sciatic nerve. During the February 2013 VA examination, muscle strength in the lower extremities was normal (5/5), there was no muscle atrophy, knee and ankle reflexes were normal (2+) bilaterally, and sensation in the lower extremities was normal bilaterally. The only neurologic symptoms involving the lower extremities included severe and constant pain in both lower extremities and moderate intermittent pain, paresthesia/dysesthesia, and numbness in the lower extremities. Overall, the examiner who conducted the examination concluded that the Veteran's radiculopathy was moderate bilaterally. In sum, the neurologic manifestations were wholly sensory and at worst moderate during the February 2013 VA examination. Hence, ratings in excess of 20 percent for radiculopathy under DC 8520 are not warranted at any time since February 1, 2013. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.124a, DC 8520. The Board notes that the Veteran has reported urinary and bowel incontinence during the claim period. However, the urinary symptoms have consistently been attributed to a non-service-connected prostate disability. Also, there is no evidence that any bowel incontinence is related to his service-connected low back disability. Thus, a separate compensable rating for bowel or bladder impairment is not warranted at any time during the claim period. C. Extraschedular Considerations Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected low back disability. All of the symptoms experienced by the Veteran are contemplated by the relevant diagnostic criteria as set forth above. ORDER Entitlement to a rating in excess of 40 percent prior to February 1, 2013, or a rating in excess of 60 percent since that date for lumbar spine degenerative spondylosis with IVDS is denied. Entitlement to a separate 10 percent rating for radiculopathy of the right lower extremity, for the claim period prior to May 5, 2010, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a separate 10 percent rating for lumbar radiculopathy of the left lower extremity, for the claim period prior to May 5, 2010, is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to higher ratings for right lower extremity or left lower extremity radiculopathy since May 5, 2010, is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs