Citation Nr: 1319558 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-41 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation higher than 10 percent for left lower extremity radiculopathy. 2. Entitlement to an initial evaluation higher than 10 percent for right lower extremity radiculopathy. 3. Entitlement to an evaluation in excess of 20 percent for degenerative disease of the lumbar spine, prior to September 3, 2008. 4. Whether a rating reduction from 20 percent to 10 percent for degenerative disease of the lumbar spine, effective from September 8, 2008, was proper. 5. Entitlement to an evaluation in excess of 10 percent for degenerative disease of the lumbar spine at any time during the rating period from September 8, 2008 to April 29, 2010. 6. Entitlement to an evaluation higher than 20 percent for degenerative disease of the lumbar spine, from April 29, 2010. 7. Entitlement to a total disability rating for compensation purposes based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to May 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as questions currently before the Board were placed in appellate status by a notice of disagreement expressing dissatisfaction with original rating assignments, the Board has characterized those rating issues on appeal as claims for higher initial evaluations of original awards. Analysis of those issues therefore requires consideration of the ratings to be assigned effective from the date of award of service connection for the disabilities at issue. The Board notes that the Veteran also appealed the rating assigned for her service-connected major depressive disorder. In June 2012, the RO issued a rating decision which granted service connection for posttraumatic stress disorder (PTSD) and awarded a 70 percent rating for the Veteran's service connected mental health disabilities of PTSD and major depressive disorder. In a signed statement dated and received in June 2012, the Veteran expressed satisfaction with the 70 percent rating and withdrew the appeal for an increased rating for the service-connected psychiatric disabilities. 38 C.F.R. § 20.204. The Board has reviewed both the Veteran's physical claims files and her Virtual VA file so as to ensure a total review of the evidence. The issues of entitlement to an evaluation in excess of 20 percent for the lumbar spine disability prior to September 8, 2008, the propriety of a rating reduction for the lumbar spine disability from 20 percent to 10 percent effective September 8, 2008, entitlement to a rating higher than 10 percent for the lumbar spine disability at any time during the period from September 8, 2008 to April 29, 2010, entitlement to an evaluation in excess of 20 percent for the lumbar spine disability from April 29, 2010, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the applicable rating period on appeal, the Veteran's left lower extremity radiculopathy has resulted in decreased sensation (numbness) and pain demonstrating no worse than mild incomplete paralysis of the sciatic nerve. 2. Throughout the applicable rating period on appeal, the Veteran's right lower extremity radiculopathy has resulted in decreased sensation (numbness) and pain demonstrating no worse than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for service-connected left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for an initial rating in excess of 10 percent for service-connected right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Where, as here, the appeal stems from notice of disagreement with the award of an initial disability rating following the grant of service connection, further VCAA notice is not required. 38 C.F.R. 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA statutory duties under 38 U.S.C.A. § 5104 and § 7105. In this regard, a statement of the case was issued which set forth the diagnostic code criteria to be satisfied to warrant a higher initial rating. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran a VA examination in October 2008 and July 2012. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate the disability. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the initial ratings and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Facts and Analysis Initially, the Board notes it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id., § 4.3. Further, a disability rating 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 is considered in the context of the entire recorded history. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Veteran's radiculopathy of the left and right lower extremity is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for disabilities of the sciatic nerve. Under Diagnostic Code 8520, 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 of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term 'incomplete paralysis' with this and other peripheral nerve injuries 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. Id. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Service connection for left lower extremity radiculopathy and right lower extremity radiculopathy was granted in the March 2009 rating decision on appeal, and a 10 percent initial rating was assigned for each disability, effective from June 13, 2005. No appeal was taken as to the effective date assigned. As such, the rating period on appeal is from June 13, 2005. The Veteran contends that at all relevant times, the severity of her service-connected bilateral lower extremity radiculopathy warrants ratings higher than the initial ratings awarded. The Board also notes the Veteran is service connected for other disabilities, including, as relevant to this decision, a low back disability (degenerative disease of the lumbar spine). From its review of the record, it appears that the Veteran has been experiencing radiculopathy symptoms as early as November 2001. In April 2003, the Veteran described a 10 year history of low back pain that was mostly muscoskeletal in nature, but in the past year, she noted increased numbness in a nonspecific dermatome pattern diffusely across the posterior and anterior thigh. The numbness sometimes extended down into the dorsum of her feet. There was no significant radiculopathy and no frank weakness. Radiological studies indicated mild degenerative joint disease at L4-L5 and L5-S1 without at this time signs of stenosis. In August 2003, while being treated for chronic low back pain, it was noted the Veteran had myofascial trigger points in the lumbar paraspinal muscles that radiate into the lower extremities but there was no evidence of lumbar radiculopathy. In April 2004, she complained of some radiculopathy of dull 3/10 pain from the lower back. At this point, it was diagnosed as paresthesis due to myofascial trigger points in the lumbar paraspinal muscles and chronic low back pain without evidence of lumbar radiculopathy. In February 2005, the Veteran complained of pain radiating from her back through the buttocks and bottom with a dull, aching, sharp pain in the back. She had no bowel or bladder problems or numbness and tingling. The left leg gave out but she experienced weakness with both legs. Examination showed decreased proprioception in the L5-S1 dermatome in the left leg while the right leg was normal. In December 2006, a neurology consultant stated there was no radicular or dermatome deficit for the lower limbs. He diagnosed a distal neuropathy of an unknown etiology. Further, the Veteran had multiple myalgia and arthralgias and it was difficult to have permanent pain without evidence of a fracture or dislocation. The Veteran had a new complaint of numbness. In January 2007, a NCS/EMG of the lower extremities was normal. In April 2008, the Veteran stated that low back pain radiated down her legs to the feet. It will also send a shooting pain upwards to the middle of the back. She described a throbbing pain but also burning sensation in her feet. If she stands still too long, numbness comes on. Her caregivers at VAMC noted the Veteran worked in housekeeping, which required a lot of lifting, bending, and stooping. Increased back pain resulted which then sent radicular pain into the lower extremities and occasional on and off numbness in the feet. There was no weakness or bowel or bladder problems. Her medical providers concluded she had low back pain, likely myofascial in nature, and recommended various forms of treatment such as pool therapy. In June 2008, the Veteran had pain radiating down her lower extremities bilaterally, but no numbness or weakness. Her strength, sensation, and reflexes were normal. An MRI in July 2008 demonstrated mild bilateral facet degenerative disease of the lumbar spine at L4-L5 and L5-S1, mild retrolisthesis of L5 over S1, mild bilateral foraminal stenosis at both L4-L5, and L5-S1, and a mild post disc bulge effacing the thecal sac at L5-S1. In August 2008, the Veteran reported her symptoms were better with pool therapy but still had significant pain. She only had occasional radiating pain to her lower extremities bilaterally. There was no numbness or weakness. She was referred by VAMC to a private pain clinic for epidural injections. It was noted the Veteran could not continue to work in housekeeping, but that opinion could change depending on whether she improved with the epidural steroid injections. Physiatry advised that she should not do housekeeping duties as it may cause more serious damage. In September 2008, a vocational rehabilitation counselor believed she could return to work with accommodations. In a kinesiotherapy note, the Veteran stated that sometimes the pain is a shocking and sharp pain that now travels down both legs when it use to be just the right leg. Pool therapy helped relax the muscles, but she noted they tightened up again and the pain returns when she goes home. The Veteran received epidural steroid injections in August and September 2008 from a private medical provider. In the history, the Veteran complained of nearly constant back pain, 6/10, with pain radiating in to the posterior aspect of the lower extremities extending into the calf. She stated there was numbness and weakness, but no tingling. She had no bowel or bladder problems. Her symptoms were worse with cold weather but better with heat and medication. Both pool and physical therapy are effective. The examination noted that lower extremity sensation and muscle strength were normal. The diagnosis was bilateral lower extremity radiculopathy. The Veteran stated just before receiving the third injection that she was 50 percent better after the second injection. She stated there were numbness, tingling, and weakness in both legs. The care provider noted the Veteran was 4/5 in strength of the ankles, but otherwise the examination of the lower extremities was normal. After the injections, the back pain significantly improved and the Veteran asked to return to work with restrictions in September 2008. In September 2008, the Veteran underwent a VA examination and stated the flare-ups and pain worsened after service. Her work duties in housekeeping aggravated the symptoms because she had to lift heavier objects such as mopping and performed other strenuous activities. At that time, she was on leave and considered herself employed. The Veteran estimated she could walk half a mile, sit for an hour, and stand for 30 minutes but estimated her ability to function was reduced by 45 percent. The Veteran's range of motion was forward flexion to 75 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation flexion of 30 degrees. Reflexes were symmetrical, motor strength was 5/5 and sensation was intact. The examiner had doubts regarding the validity of the examination because the Veteran complained of pain shooting up the back when both her knees and hips where flexed and she was asked to move her feet in dorsiflexion or plantar flexion. The examiner also concluded there was no true evidence of radiculitis or radiculopathy. In a May 2009 physical therapy assessment, it was determined the Veteran could do medium level work (10-25 pounds frequently, 20-50 occasionally, and infrequent lifting over 50 pounds.) At the end of March 2010, the Veteran had increased back pain and bilateral leg pain. She returned to the private physician who previously gave her epidural steroid injections. On examination, it was noted that straight leg raises on the right produced low back pain and left hip pain. Straight leg raises on the left produced pain in the low back and proximal left leg. There was a slight decrease in reflexes bilaterally. There was no deficit weakness in the upper or the lower extremities. In May 2010, the Veteran received more epidural steroid injections although the previous injections improved her symptoms. She experienced a constant 7/10 pain that can reach 10/10. It radiates into the posterior aspect of both legs into her feet. She also complained of numbness and tingling and weakness in both legs. She stated she had an injury at work in June 2009 to her back from constant bending and mopping. Pain is aggravated by standing and/or walking too long and repetitive motion. It is alleviated by lying down. The physician noted increased pain moving from a supine to sitting position. The lower extremities had normal sensation, bilateral muscle strength 5/5, and no atrophy. Before the second injection in May 2010, the Veteran noted improvement with the first injection and complained of diffuse aching and throbbing pain, 5/10, and burning in the paraspinal area, which at times were in her legs. The physician did not believe she had impingement. The Veteran and her daughter have submitted statements regarding the Veteran's disabilities, including her radiculopathy symptoms and the effect they have on her overall functioning. Her daughter has noticed the Veteran complains a lot about back pain and the daughter has to help with cooking, cleaning, laundry, grocery shopping, and even helping the Veteran get dressed. Nothing in her statement directly addresses the radiculopathy symptoms as opposed to the symptoms of the low back such as the Veteran's ability to bend forward. The Veteran states that her back pain and other symptoms resulting from the degenerative disc disease has resulted in her physician restricting her at work to light duty and her supervisor advised she would have to take sick leave or annual leave. The Veteran believed the back disability affected her activities of daily living and her ability to keep stable, suitable employment. She describes excruciating pain of the lower back that goes down both legs. In a statement dated in January 2009 the Veteran stated if she stands for extended periods of time, then the pain radiated to her buttocks and then down the back of the legs and had numbness and tingling down both legs. In a statement the Veteran submitted in April 2009, the Veteran reported pain going down her legs extending into her feet and if she has to stand for long periods, she must shift her weight from one foot to the other and eventually rest her back against a wall. She also has problems walking or activities with repetitive motion, resulting in limping, and pain in the back that is very sharp in one spot with numbness in her legs. She also experiences a tingling feeling. The leg pain can occur without notice along with back pains and spasms. The backs of her legs and feet hurt. She experiences weakness in both legs and the pain makes it difficult to walk in the grocery store or in the parking lot or stand in long lines. In September 2010, the Veteran reported she was placed on light duty and had almost lost her job. She was off work from July to December 2008. She again reported tingling and numbness and weakness in her legs and a severe shooting pain down from her back to the back of her legs radiating to her feet. She reported falling three times. In a VA examination directed to her feet and spine in June 2011, the Veteran reported a severe flare-up of the back 2-3 times a month that lasts 1-2 days. The Veteran reported urinary frequency but the examiner determined this was not a residual of her back disability. She also reported symptoms of fatigue, decreased motion, stiffness, weakness, spam, and pain that was moderate to severe and waxed and waned. She had radiating shooting pain in both legs to her feet. There was no numbness, paresthesis, leg or foot weakness, or falls or unsteadyiness. On examination, the only objective signs were guarding and pain. The Veteran's range of motion was forward flexion to 50 degrees, extension to 12 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation flexion of 15 degrees. The pain did not change the results with repetition. The Veteran's sensation was normal and the motor strength was 5/5. In testing reflexes, the examiner noted the knee jerk was absent and the ankle jerk was hypoactive. The Board notes there were also hypoactive findings in the reflex testing of the upper extremities. The examiner diagnosed L5-S1 degenerative disc disease with facet syndrome. At the examination, she reported she was still employed full time and lost 5 weeks of work in the prior year due to back and foot pain. She had worked in housekeeping, but now worked as a "PSA." The Veteran was also diagnosed with pes planus and plantar fasciitis and both the back disability and the feet disabilities had a moderate effect on exercise, chores, and sports as well as causing increased absenteeism, decreased mobility, and problems with lifting and carrying. In March 2012, the Veteran submitted a statement her feet hurt constantly and she could not do an eight hour shift. She needed to ask co-workers for help and it was impossible to work as a housekeeping aide and walk around. She needed to sit frequently and avoid repetitive pressure on her feet. It is not clear, but as the Veteran at this point in time was seeking service connection for pes planus and plantar fasciitis, and the remaining portion of the statement discusses the plantar fasciitis, it appears this statement was not discussing any radiculopathy symptoms. In July 2012, the Veteran was provided a VA examination regarding the radiculopathy of the left lower leg and the radiculopathy of the right lower extremity. She gave a history of the low back pain starting in the 1990s but in the early 2000s, she began experiencing bilateral leg symptoms. Walking, bending, and lifting make it worse. She can alleviate her symptoms by rest or avoiding activities. The pain was not constant but intermittent and moderate. She had mild paresthesia and/or dysesthesia bilaterally as well as mild numbness bilaterally. Strength was normal. There was no atrophy and reflexes were both normal. Sensation for the upper anterior thigh and the thigh/knee area was normal. Sensation was decreased in the lower leg/ankle area (the L4/L5/S1 dermatome) and the foot toes area (L5 dermatome). There were no trophic changes and her gait was normal. The examiner determined that bilaterally, the sciatic nerve, external popliteal nerve, musculocutaneous, anterior tibial nerve, internal popliteal, posterior tibial, anterior crural, internal saphenous, obturator, external cutaneous nerve of the thigh and the ilio-inguinal nerve were all normal. The examiner also concluded that the peripheral nerve disabilities of the left and right legs did not impact the ability to work. Based on the above evidence, the Board finds that an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity and an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity are not warranted at any time during the relevant rating period. The evidence reflects that the Veteran had symptoms of pain, and numbness or tingling, but no other sensory complaints in her lower extremities. All VA examinations or treatment notes have shown that motor strength, measured as active motion against full resistance, was within normal limits. She had normal muscle tone with no muscle atrophy and no joint movement that was affected by the Veteran's nerve disability. Sensation was never noted to be significantly decreased, that is, types of sensation such as monofilament, vibration, and light touch remained intact. The symptoms in the legs appear to be intermittent or occur only with extended use of her back as opposed to occurring constantly at a substantial level of severity. Further, the Board notes that the Veteran's reported neurological symptoms on VA examinations in October 2008, June 2011, and July 2012 have been essentially unchanged. In this regard, the evidence shows that the Veteran has persistent numbness, and pain, but it is intermittent, that is, she does not experience a continuous pain and numbness in the lower extremities. She has reported subjective symptoms of paresethesia, dysesthesias, and impaired incoordination. The radiculopathy appears to result in her changing positions while standing. The disability has had a functional impact because she cannot perform household chores and she can only perform light duty tasks on her job. Nevertheless, even though her employer has to provide her accommodations such as light duty, she is able to perform her duties as a housekeeping aide or PSA where she currently works full time. The Veteran also indicated that it results in limiting walking and she uses a brace, but that appears to be for the back itself and not for the radiculopathy of the lower extremities. The Board notes, however, that it is not just her left leg radiculopathy and right leg radiculopathy but also her back pain that causes her flare-ups, limitations in mobility and travelling, and other limitations of function. The Board, as just discussed, recognizes that there is evidence that the Veteran is limited in her mobility and other functional limitations. The other disability, low back pain plays a role. Her back disability, degenerative disc disease, is affected by the lifting, carrying, and other repetitive motions of her job. She has been separately rated for that disability. To the extent that the low back disability accounts for the Veteran's pain, limited mobility, or impaired function, the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board has determined that the Veteran's overall loss of function has been recognized by not only the ratings awarded for left and right leg radiculopathy, but also the ratings for the low back disability. To include all of the loss of function and symptoms due to the service-connected degenerative disease of the lumbar spine, in evaluating the service-connected bilateral leg radiculopathy, would violate the prohibition against pyramiding. Thus, the Board concludes that the evidence does not indicate that the Veteran's radiculopathy of the left lower extremity or radiculopathy of the right lower extremity each more closely approximates moderate radiculopathy. Instead, the lower extremity radiculopathy in both legs appear to be wholly sensory, which as noted earlier results in a finding of mild severity, or a 10 percent rating. The Board finds that a higher rating for 20 percent is not warranted absent constant sensory findings, including constant loss of sensation, constant pain, and constant sensations of numbness and tingling. Reconciling the VA examinations, treatment notes, and the Veteran's statements into a consistent picture, the Board finds that these symptoms, their level of severity, and effect do not represent a disability picture indicating moderate right or left leg radiculopathy. The Board also recognizes that the VA examination in June 2011, for the lumbar spine and the feet, reported decreased or absent reflexes, but notes that similar findings were not found not only before that date but also subsequent to that date when tested in VA examinations in July 2012. In addition, no notations of absent or decreased reflexes were reported in the subsequent VAMC treatment records. The Board also notes that hypoactive reflexes were noted in the upper extremities in the June 2011 VA examination. As different examiners, at different times, will not describe the same disability in the language, the Board, when examining the entire medical history before it, finds the evidence indicates the Veteran has mild symptoms of bilateral lower extremity radiculopathy and the evidence does not indicate that she had moderate symptoms in either lower extremity during the relevant rating period. As numbness and tingling, and pain are contemplated by a 10 percent evaluation for mild bilateral lower extremity radiculopathy, the Board finds that June 2011 VA examination and the reflex results are consistent with the 10 percent evaluation for radiculopathy. The Board has also considered the Veteran's (and her daughter's) lay statements that her disabilities are worse than currently evaluated. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the competency, credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report, and her daughter is competent to observe, her symptoms because this requires only personal knowledge as it comes through their senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Neither the Veteran, nor her daughter, however, is competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in the management, identifying of diseases and complications related to neurological disabilities, including as distinguished from her orthopedic back disability. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran or her daughter is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis, statement, or opinion. Such competent evidence concerning the nature and extent of the Veteran's radiculopathy in each leg has been provided by the medical personnel who have examined her during the current rating period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints, or her daughter's observations, as to increased symptomatology, or opinions as to severity, or which symptoms relate to which disability. Thus, the Board finds that the evidence indicates the Veteran has symptoms of mild incomplete paralysis, but her disability does not more nearly approximate moderate incomplete paralysis for the period since service connection became effective in June 2005. As such, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent for the Veteran's left lower extremity or right lower extremity radiculopathy disability. While the Veteran is competent to report the symptoms she experiences, and the Board finds her credible in this regard, except where in contrast to objective clinical findings, the reported symptoms are consistent with the assigned schedular evaluation of 10 percent for radiculopathy in each leg at all relevant times. Finally, there is no evidence of severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The external popliteal nerve, musculocutaneous, anterior tibial nerve, internal popliteal, posterior tibial, anterior crural, internal saphenous, obturator, external cutaneous nerve of the thigh and the ilio-inguinal nerves were all normal. Therefore, a separate rating for the other nerves of the left leg or the right leg under their appropriate diagnostic code is not warranted. In sum, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent, each, for the Veteran's left leg radiculopathy or for the right lower extremity radiculopathy. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the rating criteria for radiculopathy describe the disability levels and symptomatology. The Board has considered the Veteran's lay statements and the medical evidence regarding her disability. The Veteran describes, as to those symptoms related to radiculopathy as decreased mobility, decreased functioning in her job and life, pain and numbness, and in the examination and other records, also detailed her impairment at work and her quality of life such as grocery shopping. The Board has determined that such impairment of functioning is already encompassed in the rating criteria according to the diagnostic code for a sciatica nerve injury or disability. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. TDIU Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As noted above, this issue is addressed below in the REMAND portion of this decision. ORDER Entitlement to an initial rating in excess of 10 percent for service-connected left lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for service-connected right lower extremity radiculopathy is denied. REMAND The Board notes that a claim for total disability based upon individual unemployability (TDIU) is already part of her claim for a higher rating for left leg and right leg radiculopathy if raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (a request for a total disability rating for compensation based on individual unemployability raised by the Veteran is not a separate claim for benefits, but part of the claim for increase). Entitlement to a TDIU was denied in the March 10, 2009 rating decision on appeal. Although the Veteran did not perfect an appeal of that decision, under Rice, the claim for a TDIU is nevertheless before the VA as part of the issues for higher initial ratings for radiculopathy in each leg. As such, the VA may consider entitlement to a TDIU for the rating period from June 13, 2005, the effective date of the award of service connection for the service-connected bilateral lower extremity radiculopathy. However, if pursuant to completion of action requested below, the Veteran completes an appeal of the matters of an increased rating for the service-connected lumbar spine disability, the rating period for consideration of entitlement to a TDIU will be from one year prior to the date of receipt of the increased rating claim for the lumbar spine disability, or June 14, 2004. While the record reflects that the Veteran is currently employed as a housekeeping aide or "PSA", the Board does not find that such fact alone is dispositive of the issue. The Board is unclear as to whether such employment constitutes substantial gainful employment. Further information in this regard, including as to whether the level of wages is above the poverty line, would be useful in adjudicating the TDIU issue. Furthermore, in a November 2012 statement, the Veteran's service organization representative argues that the Veteran's notice of disagreement received in April 2009 not only disagreed with the ratings awarded for bilateral radiculopathy and major depressive disorder, but also disagreed with the reduction of the rating for her degenerative disease of the lumbar spine from 20 percent to 10 percent effective September 8, 2008. The Board has determined that the representative's contention has merit. The April 2009 notice of disagreement relates to the March 10, 2009 rating decision which awarded service connection for the radiculopathy for each leg, and for major depressive disorder, which reduced the rating for her low back disability from 20 percent to 10 percent, and which denied entitlement to a TDIU. The reduction of the rating for the lumbar spine disability had the effect of reducing her overall combined rating to 30 percent as of September 8, 2008. In her notice of disagreement, the Veteran started out by stating she was appealing her overall rating of 30 percent. By her assertion, the Board finds that she disagreed that her service-connected lumbar spine disability had improved such that a reduction from the 20 percent rating was proper. Accordingly, the Board finds that, along with the radiculopathy ratings and the major depressive disorder rating, the Veteran placed the issue of the propriety of the rating reduction in appellate status, along with the issues of the appropriate ratings assigned for the lumbar spine disability throughout the rating period on appeal, from June 13, 2004, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o). The Board notes that in a rating decision dated in August 2011, effective April 29, 2010, the disability was again rated at 20 percent. Therefore, issues are set forth as stated on the title page of this decision. As the RO has not issued a statement of the case addressing these matters, the Board is required to remand them for appropriate action. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter to the Veteran's current address of record for the issues of entitlement to a total disability rating due to service-connected disabilities based on individual unemployability (TDIU), the propriety of the rating reduction from 20 percent to 10 percent effective September 8, 2008 for the lumbar spine disability, and entitlement to an increased rating for the lumbar spine disability, rated 20 percent prior to September 8, 2008, 10 percent from September 8, 2008 to April 29, 2010, and 20 percent from April 29, 2010. Provide the Veteran a VA Form 21-8940, VETERAN'S APPLICATION FOR INCREASED COMPENSATION BASED ON UNEMPLOYABILITY, for completion. Request that the Veteran provide information on her employment status since 2004, to include the average weekly hours worked, and annual wages. If she is currently employed, she should be asked to state why such employment should not be considered substantially gainful employment. If she is currently not employed, the Veteran should be asked to provide an authorization from her prior employer concerning the reasons the employment relationship ended. All efforts to obtain records must be documented. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). Any additional development, including a VA examination, deemed necessary to adjudicate the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities, and/or entitlement to an increased rating for the lumbar spine disability from April 29, 2010, should be undertaken. 2. Furnish the Veteran a statement of the case on the matters of the propriety of the reduction of the rating for degenerative disease of the lumbar spine from 20 percent to 10 percent effective September 8, 2008, and entitlement to an increased rating for degenerative disease of the lumbar spine rated 20 percent prior to September 8, 2008, 10 percent from September 8, 2008 to April 29, 2010, and 20 percent from April 29, 2010. In order to perfect an appeal of any of these matters, the Veteran must timely file a substantive appeal. 3. Thereafter, adjudicate the issue of entitlement to a TDIU. In this regard, it should be noted that the VA may consider entitlement to a TDIU for the rating period from June 13, 2005, the effective date of the award of service connection for the service-connected bilateral lower extremity radiculopathy. However, if pursuant to completion of action requested above, the Veteran has completed an appeal of the matters of an increased rating for the service-connected lumbar spine disability, the rating period for consideration of entitlement to a TDIU will be from one year prior to the date of receipt of the increased rating claim for the lumbar spine disability, or June 14, 2004. Notice of the determination should be issued to the Veteran and her representative. If the benefit sought is not granted, issue a statement of the case and afford the appropriate period to respond. Thereafter, the matter should be returned to the Board for appellate consideration. The appellant 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs