Citation Nr: 1319621 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-17 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for a low back disability with radiculopathy, in excess of 20 percent prior to December 12, 2011, and in excess of 40 percent from December 12, 2011. 2. Entitlement to an increased rating in excess of 20 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied entitlement to a rating in excess of 20 percent for service-connected low back pain with radiculopathy. The Veteran was scheduled to appear at a hearing before a Veterans Law Judge in January 2011; however, she failed to appear. The Veteran has not filed a motion for a new hearing date following her failure to appear at the hearing. As such, the case will be processed as if the Veteran withdrew her request for a hearing. 38 C.F.R. § 20.704(d) (2012). In a May 2011 Decision and Remand, the Board, in pertinent part, denied the reopening of a claim for service connection for bursitis of the left hip on the basis that the evidence submitted was not new and material. As the evidence contains no indication that the Veteran has appealed the Board's denial of the Veteran's application, the Veteran's application to reopen service connection for bursitis of the left hip is not in appellate status and is not before the Board. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012). In the May 2011 Decision and Remand, the Board also remanded the Veteran's claim for an increased rating in excess of 20 percent for the service-connected low back disability with radiculopathy to the Appeals Management Center (AMC) for further development. Specifically, the Board requested that the AMC schedule the Veteran for an examination to determine the current severity of the Veteran's claimed low back disability with radiculopathy. On December 12, 2011, the AMC provided the Veteran with a VA medical examination in compliance with the May 2011 Remand directives. In a subsequent March 2012 rating decision, the AMC partially granted the Veteran's claim. Specifically, the AMC granted an increased rating of 40 percent for the low back disability with radiculopathy (of the right lower extremity only), effective December 12, 2011; and assigned a separate rating of 20 percent for radiculopathy of the left lower extremity, effective December 12, 2011. Having done so, the AMC returned the claims file to the Board for adjudication. As the AMC complied with the Board's May 2011 Remand directives, the Board will proceed to adjudicate the Veteran's appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). As noted above, in the March 2012 rating decision, the AMC assigned a separate rating of 20 percent for radiculopathy of the left lower extremity, effective December 12, 2011. In a June 2013 brief in support of the Veteran's claim, the Veteran's representative stated that the AMC committed clear and unmistakable error (CUE) in granting an effective date of December 12, 2011 for the left lower extremity radiculopathy disability in the March 2012 rating decision. In the brief, the Veteran's representative essentially contended that the separate rating for radiculopathy of the left lower extremity should have been made effective as of the date of the Veteran's discharge from service because the AMC, in the March 2012 rating decision, did not consider evidence indicating that the Veteran had radiculopathy symptomatology within a year of her service discharge. In response to the Veteran's representative's contentions, the Board notes that VA initially granted service connection for a low back disability with radiculopathy in a May 1990 rating decision, effective the date of the Veteran's discharge from service. In that decision, VA rated the Veteran's low back disability with radiculopathy combined as being 20 percent disabling. As she disagreed with the 20 percent rating assigned for her combined low back disability with radiculopathy, the Veteran appealed the RO's May 1990 decision to the Board. In a February 1991 Board decision, the Board denied the Veteran's claim for an increased rating for a low back disability with radiculopathy in excess of 20 percent. The Veteran did not appeal the Board's February 1991 decision and that decision became final. 38 U.S.C.A. § 7104. Therefore, VA previously adjudicated the issue of a higher initial rating for radiculopathy, dating back to the Veteran's discharge from service, more than two decades ago. Moreover, after the issuance of the Board's February 1991 Decision, denying the Veteran's claim for a higher initial rating, the Veteran did not file an appeal for an increased rating in excess of 20 percent for her low back disability with radiculopathy combined until January 2005. The RO subsequently decided the Veteran's claim for an increased rating in the November 2005 rating decision from which this appeal arises. The AMC's March 2012 rating decision, assigning a separate rating of 20 percent for radiculopathy of the left lower extremity, effective December 12, 2011, was issued as part of the Veteran's continuing appeal of the November 2005 rating decision. As the Veteran's appeal of an increased rating for her low back and radiculopathy is still in appellate status, the March 2012 rating decision, granting the separate rating for radiculopathy of the left lower extremity, has not become final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). Therefore, any claim seeking the reversal or amendment of the March 2012 rating decision based upon a showing of clear and unmistakable error (CUE) is premature. See 38 C.F.R. § 3.105(a) (2012) (noting that claims based on CUE request the reversal or amendment of finalized VA decisions). In the November 2005 rating decision from which this appeal arises, the RO also, in pertinent part, denied an application to reopen service connection for bursitis of the right hip. The Veteran subsequently appealed the issue to the Board. Prior to the Board's adjudication of that issue, in an October 2010 rating decision, the RO reopened the Veteran's claim for right hip trochanteric bursitis and granted service connection, assigning a 10 percent rating effective January 31, 2005, the date of claim. As the October 2010 rating decision fully granted the Veteran's claim for service connection for right hip bursitis, that issue is no longer in appellate status and is not before the Board. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). The record contains no indication that the Veteran has filed a Notice of Disagreement (NOD), disagreeing with either the initial rating assigned for her right hip bursitis or the effective date assigned for the grant of service connection. Therefore, the October 2010 rating decision, granting service connection for right hip bursitis, has become final. See id. Yet, in the June 2013 brief, the Veteran's representative wrote that VA should have granted service connection for the Veteran's right hip bursitis effective on the date of her discharge from service. The Board notes that the issue of an earlier effective date for the grant of service connection for bursitis is not before the Board or, in actuality, currently pending at VA. If the Veteran or the representative wish to file a claim for an earlier effective date for bursitis, to include any claim based on CUE in the October 2010 rating decision, the Board notes that they should contact the RO to file such a claim. FINDINGS OF FACT 1. For the increased rating period prior to December 12, 2011, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; favorable ankylosis of the thoracolumbar spine; or symptomatology resulting in incapacitating episodes having a total duration of at least for weeks, but less than six weeks, during a 12 month period. 2. For the increased rating period from December 12, 2011, the Veteran's low back disability and radiculopathy of the right lower extremity was not manifested by symptomatology more nearly approximating unfavorable ankylosis of the entire spine, or symptomatology resulting in incapacitating episodes having a total duration of at least six weeks during a 12 month period. 3. For the entire increased rating period under appeal, the Veteran's radiculopathy of the right lower extremity was manifested by symptomatology more nearly approximating mild paralysis of the sciatic nerve; for the entire increased rating period, the Veteran's radiculopathy of the right lower extremity was not manifested by symptomatology more nearly approximating moderate paralysis of the sciatic nerve. 4. For the increased rating period prior to December 12, 2011, the Veteran's radiculopathy of the left lower extremity was manifested by symptomatology more nearly approximating mild paralysis of the sciatic nerve; for the increased rating period prior to December 12, 2011, the Veteran's radiculopathy of the left lower extremity was not manifested by symptomatology more nearly approximating moderate paralysis of the sciatic nerve. 5. For the increased rating period from December 12, 2011, the Veteran's radiculopathy of the left lower extremity was not manifested by symptomatology more nearly approximating moderately severe paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the increased rating period prior to December 12, 2011, the criteria for an increased rating in excess of 20 percent for the service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 2. For the increased rating period from December 12, 2011, the criteria for an increased rating in excess of 40 percent for the service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 3. With the resolution of doubt in the Veteran's favor, for the entire increased rating period under appeal, the criteria for a separate rating of 10 percent, but no greater than 10 percent, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, Note (1) after Diagnostic Codes 5235-5343, 4.124a, Diagnostic Code 8520 (2012). 4. With the resolution of doubt in the Veteran's favor, for the increased rating period prior to December 12, 2011, the criteria for a separate rating of 10 percent, but no greater than 10 percent, for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, Note (1) after Diagnostic Codes 5235-5343, 4.124a, Diagnostic Code 8520 (2012). 5. For the increased rating period from December 12, 2011, the criteria for an increased rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a VCAA notice letter sent in March 2005 satisfied most of the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; and the information and evidence the Veteran was expected to provide. In an April 2009 letter, VA issued a letter providing the information required by Vazquez-Flores. The April 2009 Vazquez-Flores notice was issued after the issuance of the November 2005 rating decision from which the Veteran's claim arises. In Pelegrini, 18 Vet. App. at 112 (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This was not done in this case; however, subsequent to the issuance of the aforementioned notice letter, the AMC readjudicated the Veteran's claim, as demonstrated by the October 2010 Supplemental Statement of the Case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing a fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect); Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006) (Mayfield III) (holding that a statement of the case that complies with all applicable due process and notification requirements constitutes a re-adjudication decision). As the October 2010 SSOC complied with the applicable due process and notification requirements for a decision, it constitutes a re-adjudication decision. Accordingly, the provision of adequate notice followed by a re-adjudication "cures" any timing problem associated with notice or the lack of notice prior to an initial adjudication. Mayfield III, 20 Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (Mayfield II). The Board finds that all necessary assistance has been provided to the Veteran. VA has acquired the Veteran's VA treatment records to assist the Veteran with the claims. In September 2005, March 2009, and December 2011, VA provided the Veteran with VA medical examinations to determine the severity of the low back disability with radiculopathy. As the VA medical examination reports contain findings indicating the severity of the Veteran's low back and radiculopathy disabilities, they are adequate for VA purposes and there is no duty to provide an additional medical examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Disability Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in VA's 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating 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 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. 38 C.F.R. § 4.21 (2012). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. While a veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) held in Hart v. Mansfield, 21 Vet. App. 505 (2007), that staged ratings are 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 Court recognized that if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Disabilities of the spine usually are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). 38 C.F.R. § 4.71a. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with regard to the presence or non-presence of 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id.; see also Plate V, 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 defines an incapacitating episode as 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. Regardless of the criteria, when assigning a disability rating for an orthopedic disorder, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Under 38 C.F.R. §§ 4.40 and 4.45, the rating for an orthopedic disorder must reflect functional limitation which is due to pain, as supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point at which the claimant experiences onset of pain. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If a separate rating is granted for radiculopathy related to a spinal disorder, because there is no diagnostic code specifically designed for radiculopathy-related disorders, it may be rated by analogy to Diagnostic Code 8520, disease of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is for mild incomplete paralysis; a 20 percent rating is for moderate incomplete paralysis; a 40 percent rating is for moderately severe incomplete paralysis; a 60 percent rating is for severe incomplete paralysis with marked muscular atrophy; and a 80 percent rating is for complete paralysis where 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. The Board has reviewed all of the lay and medical evidence in the Veteran's claims folder. The Board finds that the Veteran is competent to report the symptoms and impairments associated with her disabilities. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted lay evidence regarding the severity of the Veteran's low back disability and radiculopathy because it is lay evidence or because it was reported by the Veteran. See Kowalski, 19 Vet. App. at 171. That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board has considered all evidence of record as it bears on the question of increased ratings. See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2011) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). 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. 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 the Veteran's appeal. Evidence Reviewing the evidence of record for the entire increased rating period, in a September 2005 VA medical examination report, the Veteran reported experiencing unpredictable flare-ups of low back pain, occurring after any activity from strenuous exercises to sitting. The Veteran reported having radicular pain to down below the knee, but no numbness, in the left lower extremity. The Veteran also noted having moderately severe pain in her left hip as well. Upon physical examination, the September 2005 VA examiner noted that the thoracolumbar spine range of motion was limited to 60 degrees of flexion, 15 degrees of extension, and 15 degrees of bilateral lateral flexion. The VA examiner reported finding no increased limitation of motion due to weakness, fatigability, or incoordination during the repetitive portions of the examination. The VA examiner noted that the Veteran's gait was normal. The VA examiner indicated that reflexes were symmetric at 2+ at the knees and ankles. The VA examiner reported normal muscle function in all muscle groups. The VA examiner indicated that sensation was diminished in the lateral aspect of the left foot and the lateral aspect of the left calf. The VA examiner indicated that X-rays showed no bony abnormality of the spine. The VA examiner diagnosed low back strain with pain. In a January 2006 VA treatment record, the Veteran reported experiencing pain in her right hip. After an examination, the January 2006 VA examiner noted that lumbar motion was normal and bilateral lower extremity strength was normal. In a May 2007 substantive appeal to the Board, the Veteran reported experiencing a loss of range of motion in her back that she claimed radiated down her right leg. The Veteran also reported experiencing pain after prolonged sitting and standing. The Veteran indicated that she had been wearing a back brace at work since 2002. In a January 2008 VA treatment record, a VA examiner noted that the Veteran experienced hyperesthesia of the lower right leg, but no weakness. The VA examiner noted that the Veteran's gait was normal. The VA examiner diagnosed a tingling right leg and questionable mild peroneal nerve compression. In an April 2008 VA treatment record, the Veteran reported experiencing low back pain with radiating pain from the left posterior hip to the knee. The Veteran also reported experiencing pain in the right sacroiliac area. Upon examination, the VA examiner noted tenderness and spasm at the left piriformis. Upon examination, the VA examiner noted that all muscles and joints of the bilateral lower extremities were normal. A straight leg test resulted in a measurement of 45 degrees on the right and 30 degrees on the left. The VA examiner noted that said testing was positive for sciatic nerve irritation. In an August 2008 VA treatment record, a VA examiner noted that the Veteran reported experiencing sciatic pain in the left side. The VA examiner did not make any findings indicating radiculopathy. In a March 2009 VA medical examination report, the Veteran reported experiencing low back pain measuring five out of 10 with continuous associated stiffness and spasm. The Veteran denied any weakness. The Veteran reported experiencing numbness and tingling radiating to the lower extremities. The Veteran indicated that that she had flare-ups of back pain, increasing to a seven or eight on a scale of 10 at least two to three times per week. The Veteran reported experiencing an additional limitation of motion/functional impairment of 25 percent with flare-ups related to pain. The Veteran indicated that the flare-ups could be alleviated by use of a TENS unit or over-the-counter pain medication, or the use of a narcotic drug. The Veteran denied the usage of a cane, but indicated that she used a back brace. The Veteran stated that she was able to stand for approximately 10 to 15 minutes, and that she could not walk greater than 300 yards. The Veteran indicated that she had problems with extended sitting, repetitive bending, twisting, bending, turning, and stooping. The Veteran reported having problems with light duty work, such as vacuuming. The Veteran indicated that she had intermittent right calf numbness, which would be accompanied by pain radiating to the right calf, measuring a six out of 10. The Veteran also reported experiencing intermittent numbness and tingling to the left calf, with associated pain measuring a two or three out of 10. The Veteran stated that she had weakness and fatigue in her lower extremities. Upon inspection of the spine, the March 2009 VA examiner noted that the Veteran had no gibbus or curvature of the spine. The VA examiner also reported that the Veteran listed to the left foot intermittently. The VA examiner noted that the Veteran had a modified straight raise on the right. Upon physical examination, the VA examiner noted that thoracolumbar spine range of motion was limited to 45 degrees of flexion, 12 degrees of extension, 25 degrees of bilateral lateral flexion, and 20 degrees of bilateral rotation, with pain beginning at the endpoints. Due to increasing pain, the VA examiner noted that repetitive motion testing was not performed. The VA examiner noted that the Veteran appeared to have moderate fatigue, weakness, and lack of endurance with the initial range motion of the lumbar spine. The VA examiner noted that distal pulses and sensation were intact to the lower extremities. The VA examiner noted no lower extremity edema and indicated that lower extremity muscle strength was four-plus out of five. The VA examiner noted that patella reflexes were one-plus bilaterally. The VA examiner noted no muscular atrophy evidence in the extremities. The VA examiner noted that diagnostic testing showed no electrophysiological evidence of radiculopathy or diffuse peripheral neuropathy in the lower extremities. After the examination, the VA examiner diagnosed degenerative disc disease of the lumbar spine and lumbar spine radiculopathy. In a March 2010 VA X-ray report, a VA examiner noted finding mild retrolisthesis of L5 on S1, milder to moderate degenerate changes at L4-5 and L5-S1, and moderate facet joint arthopathy at L4-5 and L5-S1. In a March 2010 VA treatment record, the Veteran reported experiencing low back pain of about a week's duration. The Veteran stated that she was making her bed when she heard a clicking sound in her lower back. The Veteran indicated that she had to take the previous week of work off due to the pain. The Veteran stated that she had stiffness and pain while leaning forward. The Veteran also indicated having intermittent pain in the left thigh and left calf. The Veteran denied having any numbness or weakness in the leg. The Veteran also denied any loss of bowel control or bladder. Upon examination, the March 2010 VA examiner noted that the Veteran had a negative straight leg test bilaterally, a stiff hamstring on the left, normal muscle strength of the bilateral lower extremities, and normal symmetrical patellar reflexes. In a May 2010 VA treatment record, the Veteran reported experiencing pain and stiffness in the lower back and left lower extremity, limiting her tolerance for activity. The Veteran described her symptomatology as general stiffness with sharp pain on the left side, radiating into the left lower extremity down to the lower leg. The Veteran indicated that she had strained her back making her bed. Upon physical examination, the May 2010 VA examiner noted that thoracolumbar spine range of motion was limited to 73 degrees of flexion, 16 degrees of extension, 12 degrees of bilateral lateral flexion, and nine degrees of bilateral rotation. Straight leg testing was 45 degrees on the right and 30 degrees on the left. The VA examiner noted that muscle testing of the left lower extremity was normal. Upon testing in the right lower extremity, the VA examiner noted that hip flexion, hip abduction, quadriceps, and hamstrings were four-plus out of five, and ankle dorsiflexion was five out of five. In a December 2011 VA medical examination report, provided on December 12, 2011, the Veteran reported having intermittent lower back pain. The Veteran indicated that she could have flare-ups which could be caused by any of an infinite number of sources. The Veteran indicated that, during flare-ups, she would experiencing a stinging pain radiating to her lower buttocks. Upon examination, the December 2011 VA examiner noted that muscle strength and reflexes were normal in the lower extremities. Straight leg testing was negative bilaterally. The VA examiner noted that the Veteran experienced intermittent and moderate radicular pain in the left lower extremity, but no symptomatology in the right lower extremity. The VA examiner noted that the Veteran had IVDS of the thoracolumbar spine, but also indicated that the Veteran had not experienced any incapacitating episodes over the previous 12 months. Upon testing, the VA examiner noted that thoracolumbar spine range of motion was limited to 30 degrees of flexion, with pain at 30 degrees and from 30 to zero degrees; eight degrees of extension, with pain at eight degrees; 11 degrees of left lateral flexion, with pain at 11 degrees; eight degrees of left lateral flexion, with pain at eight degrees; 12 degrees of left rotation, with pain at 12 degrees; and 11 degrees of right rotation, with pain at 11 degrees. The VA examiner noted no difference in limitation of motion upon the third repetitive motion, except for pain from 12 to six degrees of left rotation. The VA examiner noted that the Veteran's low back disability would impact her work negatively due stiffness related to constant sitting. The VA examiner stated that the Veteran would have to stand and walk often to relieve pain in the low back caused by sitting. Increased Rating for Low Back Disability Prior to December 12, 2011 For the increased rating period prior to December 12, 2011, the Veteran essentially contends that her low back disability, by itself, warranted a higher rating than the 20 percent rating assigned. Specifically, the Veteran reported that her low back disability was manifested by pain and limitation of motion of the back. Having reviewed the evidence of record, for the increased rating period prior to December 12, 2011, the Board finds that the Veteran's low back disability did not more nearly approximate the criteria required for a next higher rating under the applicable Diagnostic Codes. The Board notes that, during the increased rating period prior to December 12, 2011, the RO rated the Veteran's low back disability under Diagnostic Code 5237, the criteria used in evaluating non-arthritic lumbosacral strains; however, as the X-ray evidence for this period shows degenerative changes of the lumbosacral spine, the Board will rate the Veteran's low back disability under Diagnostic Code 5242, the criteria used in evaluating degenerative arthritis of the spine. The Board will also consider the criteria of Diagnostic Code 5243, the criteria used in rating IVDS. 38 C.F.R. § 4.71a. Having reviewed the evidence, lay and medical, for the increased rating period prior to December 12, 2011, the Board finds that the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; favorable ankylosis of the thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. As noted above, in the September 2005 VA medical examination report, the September 2005 VA examiner indicated that the Veteran exhibited forward flexion of the Veteran's thoracolumabar spine was limited to 60 degrees, with no increased limitation of motion due to weakness, fatigability, or incoordination during the repetitive portions of the examination. Subsequently, in a January 2006 VA treatment record, a January 2006 VA examiner noted that the Veteran had full range of motion of the lumbosacral spine. In a March 2009 VA medical examination report, the March 2009 VA examiner noted that thoracolumbar spine range of motion was limited to 45 degrees of flexion, with pain beginning at the endpoints. Due to the increasing pain, the VA examiner noted that repetitive motion testing was not performed. The VA examiner noted that the Veteran appeared to have moderate fatigue, weakness, and lack of endurance with the initial range motion of the lumbar spine. When assigning a disability rating for an orthopedic disorder, the Board must consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. at 206-07. The Board has noted that the March 2009 VA examiner did not have the Veteran perform repetitive motion testing of the lumbosacral spine due to concerns about increasing pain upon initial testing. The VA examiner specifically noted that the Veteran appeared to have moderate fatigue, weakness, and lack of endurance with the initial range motion of the lumbar spine. Yet, the Board notes that, even with the fatigue, weakness, and lack of endurance mentioned by the March 2009 VA examiner, the Veteran was noted to have demonstrated 45 degrees of forward flexion of the lumbosacral spine upon testing. The 45 degrees of flexion demonstrated by the Veteran does not more nearly approximate the 30 degrees of flexion listed in the criteria for the next higher 40 percent rating. Moreover, although the March 2009 VA examiner did not ask the Veteran to perform repetitive motion testing upon that day, the VA examiner did not indicate that the Veteran would have experienced such severe limitation of the spine upon such testing as to more nearly approximate either the limitation of flexion to 30 percent or favorable ankylosis of the spine required for a next higher 30 percent rating. Reviewing the lay evidence, in the March 2009 VA medical examination report, the Veteran herself reported experiencing an additional limitation of motion/functional impairment of 25 percent with flare-ups related to pain. The Board notes that a 25 percent loss of flexion from 45 degrees still would not result in flexion of 30 degrees or less. In addition, the Board notes that, in a subsequent May 2010 VA treatment record, a May 2010 VA examiner noted that thoracolumbar spine range of motion was limited to 73 degrees of flexion, well above the limitation of 30 degrees of flexion listed in the criteria for the next higher 40 percent rating under Diagnostic Code 5242. Therefore, both the medical and lay evidence of record does not indicate that the Veteran's low back disability symptomatology, for the increased rating period prior to December 12, 2011, more nearly approximated flexion of the spine limited to 30 degrees, as required for a next higher 40 percent rating under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The Board has considered the Veteran's reports of pain in her back noted throughout the record of evidence for the period prior to December 12, 2011. The Board has also considered the medical findings of pain, fatigue, weakness, and lack of endurance noted in the treatment records from that period. Yet, the presence of pain, fatigue, weakness, and lack of endurance are contemplated in the rating criteria. The Veteran's pain upon use of the back has not been noted to cause a limitation of forward flexion to the 30 degree limit required for the next higher 40 percent rating under Diagnostic Code 5242. Id. Moreover, the evidence also does not contain any evidence of favorable ankylosis of the lumbosacral spine or any notation indicating that the Veteran had a limitation of motion of the back of such severity as to more nearly approximate the favorable anklyosis of the lumbosacral spine, also listed in the criteria for a next higher 40 percent rating under Diagnostic Code 5242. Moreover, although the Veteran reported missing work for one week during the period prior to December 12, 2011, the record contains no evidence that she experienced incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during a 12 month period, as required for a next higher 40 percent rating under the Formula for Rating IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Therefore, for the period prior to December 12, 2011, the evidence does not indicate that the Veteran's low back disability symptomatology more nearly approximated that required for a next higher 40 percent rating, to include as due to pain, fatigue, weakness, and lack of endurance. See 38 C.F.R. § 4.71a; Deluca, at 206-07. From December 12, 2011 For the increased rating period from December 12, 2011, the Veteran essentially contends that her low back disability, by itself, warranted a higher rating than the 40 percent rating assigned. Having reviewed the evidence of record, for the increased rating period from December 12, 2011, the Board finds that the Veteran's low back disability did not more nearly approximate the criteria required for a next higher 60 rating under the applicable Diagnostic Codes. Specifically, for the increased rating period from December 12, 2011, the Board finds that the Veteran's low back disability did not more nearly approximate unfavorable ankylosis of the entire spine, or symptomatology resulting in incapacitating episodes having a total duration of at least six weeks during a 12 month period. 38 C.F.R. § 4.71a. As noted above, in the December 2011 VA medical examination report, the December 2011 VA examiner noted that thoracolumbar spine range of motion was limited to 30 degrees of flexion, with pain at 30 degrees. The VA examiner noted no difference in limitation of motion upon the third repetitive motion, except for pain from 12 to six degrees of left rotation. The VA examiner made no notation suggesting that the Veteran was unable to move her entire spine due to her low back disability, even after repetitive testing. Therefore, for the increased rating period from December 12, 2011, the Board finds that that the Veteran's low back disability symptomatology did not more nearly approximate unfavorable ankylosis of the entire spine, as required for a next higher 50 percent rating under Diagnostic Code 5242. See id. In addition, for the increased rating period from December 12, 2011, the record of evidence contains no notation indicating that the Veteran's low back disability symptomatology resulted in incapacitating episodes having a total duration of at least six weeks during the past 12 months, as required for the next higher 60 percent rating under the Formula for Rating IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has considered the Veteran's reports of back disability symptomatology, such as pain, for the increased rating period from December 12, 2011. Yet, the presence of pain is contemplated in the rating criteria. For the period from December 12, 2011, the Veteran's pain upon use of the back did not result in symptomatology more nearly approximating unfavorable ankylosis of the entire spine. Therefore, for the increased rating period from December 12, 2011, the evidence does not indicate that the Veteran's low back disability symptomatology more nearly approximated that required for a next higher rating under the applicable Diagnostic Codes, to include as due to pain, fatigue, weakness, and lack of endurance. 38 C.F.R. § 4.71a; Deluca, at 206-07. Separate Rating for Radiculopathy of the Right Lower Extremity The Board also finds that the Veteran's low back disability has been productive of mild, but no more than mild, radiculopathy of the right lower extremity for the entire rating period under appeal. In her May 2007 substantive appeal to the Board, the Veteran presented credible lay evidence, indicating that she experienced pain radiating down from her back to her right leg. In a January 2008 VA treatment record, a January 2008 VA examiner noted that the Veteran experienced hyperesthesia of the lower right leg, but no weakness, and diagnosed a tingling right leg and questionable mild peroneal nerve compression. Subsequently, in an April 2008 VA treatment record, a VA examiner noted that the results of straight leg test, indicating a raising of the leg to 45 degrees on the right. The VA examiner indicated that these results were positive for sciatic nerve irritation. In the March 2009 VA medical examination report, the March 2009 VA examiner noted that the Veteran had a positive modified straight raise test on the right. In a May 2010 VA treatment record, a May 2010 VA examiner noted that the results of straight leg test, indicating a raising of the leg to 45 degrees on the right. The VA examiner indicated that these results were positive for sciatic nerve irritation. Yet, in the December 2011 VA medical examination report, a VA examiner noted finding no evidence of radiculopathy in the right lower extremity. Although the December 2011 VA examiner found no evidence of radiculopathy of the right lower extremity, the Board notes that the other lay and medical evidence of record indicates the presence of mild symptomatic intermittent right lower extremity radiculopathy. Therefore, the Board finds that the Veteran's overall right lower extremity radicular symptoms are consistent with mild incomplete paralysis of the sciatic nerve, warranting a separate 10 percent rating for the radiculopathy of the right lower extremity under Diagnostic Code 8520 for the entire increased rating period under appeal. 38 C.F.R. § 4.124a. The Board also finds that, for the entire increased rating period under appeal, the Veteran's right lower extremity radiculopathy symptomatology was not manifested by symptomatology more nearly approximating moderate incomplete paralysis of the sciatic nerve, as required for a 20 percent rating under Diagnostic Code 8520. See id. The Board notes that, in the March 2009 VA examination report, the Veteran reported intermittent right calf numbness, accompanied by pain radiating to the right calf, measuring a six out of 10, and weakness and fatigue. Yet, upon testing that day, the March 2009 VA examiner noted finding only a slight patellar reflex abnormality of the right lower extremity. In addition, the March 2009 VA examiner noted finding no diagnostic evidence corroborating a diagnosis radiculopathy of either lower extremity. In addition, the December 2012 VA examiner found no evidence of radiculopathy of the right lower extremity. Therefore, the objective evidence from the increased rating period under appeal indicates that the Veteran might not have any radiculopathy symptomatology of the right lower extremity. Yet, the Board notes that the RO granted service connection for a low back disability with radiculopathy of the bilateral extremities in the May 1990 rating decision. Therefore, as the condition is service-connected and there is some objective evidence suggesting the presence of a mild intermittent radiculopathy of the right lower extremity, resolving all doubt in the Veteran's favor, the Board finds that the evidence weighs in favor of the grant of a 10 percent, but no greater than 10 percent, rating for radiculopathy of the right lower extremity. See id. Increased Rating for Radiculopathy of the Left Lower Extremity Prior to December 12, 2011 As noted in the Introduction, in a May 1990 rating decision, the RO granted service connection for a low back disability with radiculopathy of the bilateral extremities. In January 2005, the Veteran filed a claim for an increased rating for her low back disability with radiculopathy. In the March 2012 rating decision, the AMC assigned a separate rating of 20 percent for radiculopathy of the left lower extremity, effective December 12, 2011. Having reviewed the evidence of record, the Board finds that the evidence indicates that, for the increased rating period under appeal prior to December 12, 2011, the Veteran's radiculopathy of the left lower extremity was productive of mild, but no more than mild, radiculopathy of the left lower extremity. Therefore, in this decision, the Board will grant a separate 10 percent rating, but no greater, for radiculopathy of the left lower extremity under Diagnostic Code 8520 for the increased rating period prior to December 12, 2011. 38 C.F.R. § 4.124a. Reviewing the evidence of record prior to December 12, 2011, in a September 2005 VA medical examination report, the Veteran reported experiencing radicular pain to down below the knee in the left lower extremity, but no numbness in the left lower extremity. Upon physical examination, the September 2005 VA examiner noted that sensation was diminished in the lateral aspect of the left foot and the lateral aspect of the left foot. In an April 2008 VA treatment record, the Veteran reported experiencing low back pain with radiating pain from the left posterior hip to knee. A straight leg test resulted in a measurement of 45 degrees on the right and 30 degrees on the left. The VA examiner noted that testing was positive for sciatic nerve irritation. In a March 2009 VA medical examination report, the Veteran reported intermittent numbness and tingling to the left calf, with associated pain measuring a two or three out of 10. The Veteran stated that she had weakness and fatigue in her lower extremities. Upon examination, the March 2009 VA examiner noted no abnormalities of the lower extremities except for patella reflexes that were one-plus bilaterally. The VA examiner noted no muscular atrophy evidence in the extremities. The VA examiner noted that diagnostic testing showed no electrophysiological evidence of radiculopathy or diffuse peripheral neuropathy in the lower extremities. From this record of evidence, for the increased rating period prior to December 12, 2011, the Board finds that the Veteran's left lower extremity radiculopathy was manifested by symptomatology more nearly approximating the mild radicular symptomatology contemplated by a 10 percent rating under Diagnostic Code 8520. See id. Specifically, although the Veteran reported experiencing pain in the left lower extremity and fatigue and weakness, objective testing found demonstrated signs of radiculopathy which, while present, was not causing even the moderate symptomatology more nearly approximating that required for the next higher 20 percent rating under Diagnostic Code 8520. Therefore, the evidence weighs in favor of the granting of a separate 10 percent rating, but no greater, for radiculopathy of the left lower extremity under Diagnostic Code 8520 for the increased rating period prior to December 12, 2011. Id. Increased Rating for Radiculopathy of the Left Lower Extremity From December 12, 2011 For the increased rating period from December 12, 2011, the Board finds that the evidence weighs against the Veteran's claim for an increased rating in excess of 20 percent for radiculopathy of the left lower extremity. Specifically, for that period, the Board finds that the Veteran's radiculopathy of the left lower extremity was not manifested by symptomatology more nearly approximating moderately severe paralysis of the sciatic nerve, as required for a 40 percent rating under Diagnostic Code 8520. See id. The only medical evidence regarding the Veteran's left lower extremity radiculopathy symptomatology during the period from December 12, 2011 is the December 2011 VA medical examination report. In the December 2011 VA medical examination report, the December 2011 VA examiner found that the Veteran experienced intermittent and moderate radicular pain in the left lower extremity. Therefore, the medical evidence does not indicate that the Veteran experienced any left lower extremity radiculopathy symptomatology more severe than moderate during the period from December 12, 2011. Moreover, the Veteran did not submit any lay evidence indicating that she experienced left lower extremity radiculopathy symptomatology greater than moderate for the increased rating period from December 12, 2011. Therefore, the evidence weighs against the granting of a rating in excess of 20 percent for the Veteran's radiculopathy of the left lower extremity under Diagnostic Code 8520 for the increased rating period from December 12, 2011. See id. Extraschedular Ratings The Board has considered whether referral for consideration of extraschedular ratings is warranted for the Veteran's low back and radiculopathy disabilities. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran'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 a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran'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) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has 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 for completion of the third step, specifically a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. Regarding the Veteran's service-connected low back disability, turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's low back disability are specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.71a, Diagnostic Code 5242), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Code 5242 specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the increased rating period under appeal prior to December 12, 2011, the Veteran's low back disability was manifested by symptomatology more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees, but no greater than 60 degrees, limited by pain. For the rating period from December 12, 2011, the Veteran's low back disability was manifested by forward flexion of the spine less than 30 degrees, limited by pain. The schedular rating criteria specifically provide for ratings based upon limitation of motion of the spine due to pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Regarding the radiculopathy of the right and left lower extremities, turning to the first step of the extraschedular analysis, for the entire increased rating period, the Veteran's radiculopathy in the right lower extremity has been manifested by mild symptomatology. The Veteran's radiculopathy of the left lower extremity was manifested by mild symptomatology, during the period prior to December 12, 2011, and by moderate symptomatology, during the period from December 12, 2011. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria (38 C.F.R. § 4.124a, Diagnostic Code 8520), specifically contemplate ratings based on neurological symptomatology, comparable to mild incomplete paralysis of the sciatic nerve. As the schedular evaluations contemplate the symptomatology of the Veteran's low back and radiculopathy disabilities during the entire increased rating period, the Board need not determine whether there are exceptional disability pictures that exhibit other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's low back and radiculopathy disabilities, the Board is not required to remand these issue to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating for a low back disability, in excess of 20 percent prior to December 12, 2011, and in excess of 40 percent from December 12, 2011, is denied. For the entire increased rating period under appeal, a separate rating of 10 percent, but no greater than 10 percent, for radiculopathy of the right lower extremity is granted. For the increased rating period prior to December 12, 2011, a separate rating of 10 percent, but no greater than 10 percent, for radiculopathy of the left lower extremity is granted. For the increased rating period from December 12, 2011, an increased rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs