Citation Nr: 1319880 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-37 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent prior to April 8, 2009; in excess of 20 percent from April 8, 2009 to August 26, 2009; and in excess of 40 percent thereafter for service-connected herniated nucleus pulposus, post L5-S1 laminectomy to include degenerative disc disease. 2. Entitlement to an increased rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity. 3. Entitlement to an increased rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from October 1976 to February 1977 and from June 1985 to February 2005 plus eight years inactive service. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a September 2009 rating decision the Veteran was awarded an increased rating of 20 percent for his service-connected herniated nucleus pulposus effective April 8, 2009, and in a July 2010 rating decision the Veteran was awarded an increased rating of 40 percent effective August 26, 2009. Also in the September 14, 2009 rating decision, the Veteran was awarded increased ratings of 20 percent for radiculopathy of his right and left lower extremities. Such ratings constitute a partial grant of benefits, such that the issues remain on appeal and are for consideration by the Board. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Prior to April 8, 2009 the Veteran's herniated nucleus pulposus was manifested by flare-ups of pain and limitation in forward flexion of his thoracolumbar spine to 80 degrees with a combined range of motion greater than 120 degrees. The evidence does not show ankylosis or incapacitating episodes of two to four weeks. 2. From April 8, 2009 to August 26, 2009 the Veteran's herniated nucleus pulposus was manifest by flare-ups of pain and limitation in forward flexion of his thoracolumbar spine to 60 degrees. The evidence does not show ankylosis or incapacitating episodes of at least four weeks. 3. From August 26, 2009 the Veteran's herniated nucleus pulposus was manifest by flare-ups of pain and limitation in forward flexion of his thoracolumbar spine to no less than 30 degrees. The evidence does not show ankylosis or incapacitating episodes of at least six weeks. 4. Prior to March 1, 2010, the Veteran's radiculopathy of the right lower extremity was equivalent to moderate impairment, manifested by decreased sensation, numbness and pain with no decrease in muscle strength, muscle atrophy, or other functional impairment related to radiculopathy. 5. As of March 1, 2010, the Veteran's radiculopathy of the right lower extremity has been equivalent to moderately severe impairment, manifested by decreased sensation, numbness and pain; an inability to move his right great toe; right ankle flexor weakness; and right calf muscle atrophy. 6. At all times during the appellate period, the Veteran's radiculopathy of the left lower extremity has been equivalent to no greater than moderate impairment, manifested by decreased sensation, numbness and pain with no decrease in muscle strength, muscle atrophy, or other functional impairment related to radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for herniated nucleus pulposus, post L5-S1 laminectomy to include degenerative disc disease, have not been met prior to April 8, 2009. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). 2. The criteria for an evaluation in excess of 20 percent for herniated nucleus pulposus, post L5-S1 laminectomy to include degenerative disc disease, have not been met from April 8, 2009 to August 26, 2009. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). 3. The criteria for an evaluation in excess of 40 percent for herniated nucleus pulposus, post L5-S1 laminectomy to include degenerative disc disease, have been met from August 26, 2009. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met prior to March 1, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2012). 5. From March 1, 2010 the criteria for a rating of 40 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where, as here, entitlement to compensation 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, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in July 2008. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In July 2007 records reflect the Veteran bent down to pick something up and reported experiencing low back pain with reduced range of motion and tingling in his right leg. An MRI was done showing degenerative disc disease, right laminectomy, discogenic spurring extending into both foramina with greater involvement on the left, and diffuse posterior annul disc bulge and bilateral facet changes with minimal right and advanced left foraminal stenosis. In September 2007 the Veteran was seen at the VA reporting lower back pain radiating into his right leg with a numbness sensation over the dorsal aspect of the right foot and great big toe. A September 2007 private treatment record from a pain management practice reflects diagnoses of lumbar radiculopathy, lumbar post laminectomy syndrome, and cervical and thoracic spondylosis. He reported back, neck, and right lower extremity pain with some numbness and tingling in the right foot and leg at periodic times. The Veteran reported minimal pain at the appointment and stated pain is much more significant if his back has been aggravated. He continued to report low back pain in November and December 2007 to his primary care physician, but subsequent records show complaints only of cervical pain until September 2009 when lumbar disc disease is noted. In November and December 2007 and January 2008 the Veteran had transforaminal selective nerve root blocks at the pain management practice. He returned in August 2008 reporting he had been pain-free since the nerve root blocks until a week and a half prior when he suddenly developed an intense right low back and right leg pain. The Veteran underwent a VA examination in September 2008. The Veteran reported urinary urgency, erectile dysfunction, numbness, paresthesias, and foot weakness. He also reported a history of fatigue, decreased motion, stiffness, weakness, and pain in his right lumbar area. He described the pain as a constant moderate dull ache. He said the pain radiates into his right leg causing tingling, numbness, and weakness. He reported severe flare-ups of his spinal condition every two to three weeks for three to seven days, precipitated by stooping, walking, twisting, or lifting. During flare-ups he reported having to lie down and limit his activities. He said he is able to walk more than a quarter of a mile but less than a mile. The examiner noted the Veteran had an antalgic gait favoring the right side. No spinal ankylosis was noted. Pain was noted on motion of the thoracic spine with tenderness and weakness on the right. The examiner stated that the tenderness was not severe enough to be responsible for the Veteran's abnormal gait. The examiner found the Veteran had decreased sensation and numbness to pain and light touch on the left lateral foot, heel to great toe, and left lateral maleolus. He also had decreased vibration and position sense on the right great toe and decreased sensation to pain and light touch along the dorsal surface of the right foot. The Veteran's range of motion of his thoracolumbar spine was measured at 80 degrees flexion, 25 degrees extension, 20 degrees left lateral flexion, 30 degrees left lateral rotation, 20 degrees right lateral flexion, and 20 degrees right lateral rotation. The examiner found evidence of pain on motion and pain with repetitive motion but no additional limitations after repetition. The Veteran had a positive Lasegue's sign on the right side. An MRI of the lumbosacral spine showed moderate to severe degenerative changes as well as degenerative disc disease with narrowing of all the disc spaces, severe at L3-L4 and L4-L5, and mild scoliosis to the left. The Veteran reported he had lost two weeks from work over the previous 12 months due to back pain or medical appointments. His disability impacted his occupational activities due to decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in his lower extremities, and pain. The examiner noted mild effects on his shopping, recreation, and bathing and moderate effects on his chores, exercise, traveling. The examiner diagnosed herniated nucleus pulpous, post L5-S1 laminectomy, degenerative disc disease, bilateral facet disease, and left foraminal stenosis at L5. The Veteran returned to the pain management clinic in February 2009 complaining of cervical back pain. A treatment note states that the Veteran was last seen in August or September 2008 at which time his back and radicular symptoms had dissipated. In a notice of disagreement received April 8, 2009, the Veteran stated that he had had several injections in his low back for severe pain and was experiencing a decrease in mobility and capability to perform daily tasks. He reported a severe increase in pain to his leg and back and a major loss of feeling in both feet and toes. The Veteran stated that when he underwent his VA examination his back was doing well, but sometimes his back will go out causing extreme pain and loss of sensation in his leg for several days to a week or more. The Veteran was afforded another VA examination in July 2009. He reported paresthesia and sensory loss in his right foot. He reported weakness and pain in his right lower back. He described the pain as sharp and shooting and said it was moderate to severe for three to seven days. He stated that the pain also radiates down his right leg into his foot. He did not report flare-ups or incapacitating episodes. He stated that on a good day he can walk a mile but usually is able to walk only a quarter mile or more. The examiner found the Veteran's pelvis was tilted to the left but he had a normal gait. No ankylosis was found. Spasm, pain with motion, and tenderness were found on the right thoracic spine. The Veteran's range of motion of his thoracolumbar spine was measured at flexion to 60 degrees, extension to 25 degrees, left lateral flexion to 20 degrees, left lateral rotation to 35 degrees, right lateral flexion to 20 degrees, right lateral rotation to 35 degrees. The examiner noted pain on motion, including with repetition, but no additional limitations with repetitive motion. The Veteran reported he had missed two weeks during the preceding 12 months due to his back condition. The examiner found the Veteran had decreased sensation to light touch in his left lateral toes and right medial toes and reduced perception of vibration in his right medial malleolus and medial toes. On August 26, 2009 the Veteran was seen at the pain management practice for lumbar back pain and a note stated the Veteran was exhibiting symptoms consistent with lumbar intraspinal inflammation and radiculopathy. Symptoms were noted to be persistent, disabling, and intermittently severe. He was given a lumbar epidural steroid injection. In September 2009 he had lumbar-sacral medial-lateral branch blocks and later a lumbar epidural steroid injection. He had another lumbar epidural steroid injection in October 2009. A September 2009 CT scan showed moderate to severe changes in the lumbar spine, including bilateral moderate severe foraminal stenosis at L5-S1 with the left greater than the right. Spondylosis and right paracentral disc protrusion and left facet arthropathy with abutment of descending S1 bilaterally was also noted. In a September 2009 statement, the Veteran said beginning in August after his last VA examination his back pain increased. He reported he experiences severe pain when walking, bending to tie his shoes, stepping up into or out of a vehicle, using a riding lawn mower, putting on and taking off his pants, raising his right leg more than 12 inches, getting up out of a chair, and stepping into and out of the shower. The Veteran was afforded another VA examination in March 2010. He reported five incapacitating episodes lasting two to three days each for his thoracolumbar region. He reported stiffness, limited motion, back or neck pain, radiation of pain, arm pain, leg pain, leg weakness, leg paresthesias, and leg numbness. The examiner noted radiation pain down the Veteran's left buttock, posterior thigh, and lateral calf to his lateral heel and foot and numbness/tingling in his right lateral thigh and anterior calf with numbness and loss of movement to the right great toe. The examiner found the Veteran had decreased sensation to light touch bilaterally in his lower extremities and reduced perception of vibration in the right medial malleolus and medial toes. The Veteran reported flare-ups every one to two months for one to two days preventing him from doing activities over his head or working at a computer for very long. The examiner found the Veteran had tenderness of his right lumbar paraspinal and over his lower cervical spine. There was no evidence of ankylosis. His range of motion of his thoracolumbar spine was measured to be flexion to 30 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, left lateral rotation to 35 degrees, right lateral flexion to 20 degrees, right lateral rotation to 35 degrees. The examiner noted evidence of pain on motion, including repetitive motion, with no additional limitations after three repetitions. The examiner stated that the Veteran's lumbarsacral radiculopathy causes decreased mobility, problems with lifting and carrying, difficulty reaching, decreased strength in his lower extremity, and pain. It limits the chores he is able to do, including mowing the yard. He is unable to walk distances, lift, and sit or stand for a prolonged period of time. The Veteran was afforded another VA examination in May 2010. The Veteran reported he is unable to work either physical or light work, has bilateral lower leg pain and numbness, and that he has experienced a gradual worsening of all symptoms. He reported stiffness, weakness, and a sharp, aching pain in the lumbar area when getting up, bending, twisting, lifting, or walking. He described the pain as severe and said it lasted for hours every day and radiated into his lower extremities as a sharp, burning pain. The Veteran stated he had severe flare-ups every two to three weeks for three to seven days precipitated by lifting and bending. He reported being unable to walk more than a few yards. The examiner described the Veteran's posture as stooped and noted bilateral antalgia due to back pain. No ankylosis was noted. The examiner found spasm in the right and left thoracic spine. On range of motion testing of the thoracolumbar spine, the Veteran was found to have flexion to 50 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 30 degrees. Pain was noted on motion, including repetitive motion, but no additional limitations were noted with repetition. The examiner noted numbness, paresthesias, and pain in the left lateral leg and foot and right lateral thigh and dorsum of foot. The examiner found flexor weakness of the right ankle and great toe but otherwise normal strength and muscle tone with no atrophy. A sensory exam showed deficits in the right lower extremity, specifically the dorsum of foot and toes, for vibration, pain, light touch (absent), position sense, and abnormal sensation. Deficits were found in the left lower extremity, specifically the lateral heel area, for pain and light touch (absent). Paralysis, neuritis, and neuralgia were all found with a mild effect on dressing, a moderate effect on chores, shopping, recreation, and traveling, and a severe effect on exercise. The bilateral lower extremity radiculopathy also prevented sports. The Veteran submitted seven lay statements from family and friends dated in September 2009. A letter from his spouse states that the Veteran's back problems had worsened dramatically over the past few months. She stated that the Veteran was in constant pain and had limited mobility. Similarly, a letter signed by his son and daughter-in-law states that the Veteran is in constant pain caused by tasks including bending and standing up or sitting down. A letter from his brother-in-law also states that the Veteran's back pain had gotten noticeably worse in the past couple months. In another letter his sister-in-law stated that the Veteran's movements are stiff and even sitting and standing cause him pain. Two former supervisors and a former co-worker wrote letters stating that the Veteran appeared to be walking more slowly and was in noticeable pain. A. Herniated nucleus pulposus The Veteran's herniated nucleus pulposus, post L5-S1 laminectomy, including degenerative disc disease is rated 10 percent through April 7, 2009; 20 percent from April 8, 2009 to August 26, 2009; and 40 percent thereafter. Under the general rating formula, the ratings for diseases and injuries of the spine are set forth in Diagnostic Codes 5235-5242. 38 C.F.R. § 4.71a. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Note 2. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: A 20 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In general, the rating criteria take into account pain and other symptoms. In the case of spinal disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). However, the Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Board finds the evidence does not support a rating in excess of 10 percent for the Veteran's herniated nucleus pulposus for the period prior to April 8, 2009. The Veteran filed his increased rating claim in July 2008. He underwent a VA examination in September 2008. His forward flexion of the thoracolumbar spine was measured as 0 to 80 degrees with a combined range of motion of more than 120 degrees. Although he was noted to have an antalgic gait favoring the right side he was not found to have muscle spasm or guarding, and the examiner stated that the tenderness on the Veteran's right side was not severe enough to be responsible for his abnormal gait. Therefore, based on the examination results, the Veteran does not meet the criteria for the next higher 20 percent rating under Diagnostic Codes 5235-5242. The Board has also considered DeLuca, 8 Vet. App. 202, and the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. Although the September 2008 examiner found the Veteran had pain with repetitive motion, he found no additional functional limitation after repetition. In April 2009 the Veteran submitted a statement contending that the September 2008 examination was done at a time when his back was doing well and that he sometimes has flare-ups of pain. However, treatment records during that time period suggest the Veteran's flare-ups were separated by significant periods without symptoms for which he needed treatment. Records from the private pain treatment clinic where the Veteran has been treated reflect that at an August 2008 appointment he reported he had been pain-free since a nerve root block approximately seven months earlier in January 2008. The records further reflect the Veteran sought no additional treatment at the pain clinic from August 2008 until February 2009, noting his symptoms had dissipated at the time of the August 2008 appointment. He also did not report lumbar back pain to his primary care physician between December 2007 and September 2009, although he reported neck pain. The Board has considered the Veteran's contention that he has flare-ups of back pain prompting him to lie down and limit his activities. However, the Board finds even considering the Veteran's statements, the evidence does not show his condition more closely approximates the criteria for a 20 percent rating. The evidence also does not show the Veteran experienced incapacitating episodes, defined as periods of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician, with a total duration of at least two weeks, as required for a 20 percent rating for invertebral disc syndrome. Diagnostic Code 5243. Medical records reflect that the Veteran was not seen at the pain clinic for treatment between January and August 2008. He also made no complaints of lumbar back pain to his primary care physician between December 2007 and September 2009. With respect to the period from April 8, 2009 to August 26, 2009, the Board finds the evidence does not support a rating in excess of 20 percent. At the Veteran's July 2009 VA examination his flexion was measured from 0 to 60 degrees with no ankylosis found. Under Diagnostic Codes 5235-5242, the next higher rating, a 40 percent evaluation, requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. The Veteran does not meet either of those criteria. The Board has also considered DeLuca, 8 Vet. App. 202, and the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. Repetitive testing at the Veteran's July 2009 examination showed pain with repetitive motion, but did not show any additional functional loss. The Board has also considered the Veteran's complaints of reduced mobility and capability to perform daily tasks. However, the Board finds that the medical evidence does not show that the Veteran's disability approximated a higher disability rating during the applicable time period. It is important for the Veteran to understand that the assigned 20 percent rating contemplates marked limitation and pain and accounts for the symptoms the Veteran has described during that time period. The Veteran also does not meet the criteria for the next higher rating available for rating invertebral disc syndrome based on incapacitating episodes. The rating schedule requires incapacitating episodes having a total duration of at least 4 weeks during the previous 12 months. The Veteran did state at his VA examination that he had missed two weeks of work in the preceding 12 months due to his back condition, but the Veteran has not contended and the evidence does not show he suffered incapacitating episodes of at least 4 weeks during the previous 12 months. Further, medical records reflect August 26, 2009 is when the Veteran returned to the pain clinic for treatment of his lumbar spine condition after approximately a year without treatment for his lumbar spine. With respect to the period beginning August 26, 2009 for which the Veteran has been assigned a 40 percent rating, the Board finds the Veteran is not entitled to a higher rating. The evidence, including the lay statements the Veteran submitted, support that the Veteran experienced a significant worsening of symptoms around September 2009. However, the evidence does not support a finding that the Veteran's condition more closely approximates a rating higher than 40 percent. The next higher rating under Diagnostic Codes 5235-5242, a 50 percent evaluation, requires unfavorable ankylosis of the entire thoracolumbar spine, and the Veteran has never been found to have ankylosis. Further, the Veteran has never complained of an inability to move his back, although he has complained of flare-ups of pain. Although the March and May 2010 examiners noted the Veteran had pain on repetitive motion, neither noted any additional limitations with repetition. Therefore, the Board finds the Veteran's condition does not demonstrate that the Veteran's lumbar spine symptoms more closely approximate unfavorable ankylosis of the entire thoracolumbar spine so as to warrant assigning the disability a 50 percent disability rating, even after consideration of pain, weakness and other symptoms described in DeLuca. A 60 percent rating for invertebral disc syndrome based on incapacitating episodes requires incapacitating episodes of at least six weeks in the preceding 12 months. The Veteran has not alleged and the evidence does not show incapacitating episodes of that duration. Further, the Board has considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service-connected herniated nucleus pulposus, post L5-S1 laminectomy to include degenerative disc disease, that would render the schedular criteria inadequate. The Veteran's symptoms, including loss of range of motion and pain, are contemplated in the ratings assigned for his back disability. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds the case should not be referred to the Compensation and Pension Service to consider whether an extraschedular rating is warranted. In this case, there is no evidence of any recent hospitalization. The evidence also does not show marked interference with employment associated with the Veteran's back disability, although the Veteran consistently reported missing two weeks of work during a 12-month period due to his back condition, including doctor's appointments. The Board finds that the level of interference with employment is contemplated in the rating criteria. Further, although the Veteran is now unemployed, entitlement to individual unemployability has been granted from August 1, 2009. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Overall, the preponderance of the evidence is against the Veteran's claim for a rating higher than 10 percent prior to April 8, 2009; a rating higher than 20 percent from April 8, 2009 to August 26, 2009; and a rating higher than 40 percent thereafter. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. B. Radiculopathy of the right and left lower extremities The Veteran is currently rated separately for radiculopathy of the right and left lower extremities. He is rated at 20 percent for radiculopathy of the right lower extremity under Diagnostic Code 8520 and at 20 percent for radiculopathy of the left lower extremity under Diagnostic Code 8521. 38 C.F.R. § 4.124a (2012). Diagnostic Code 8520 assigns a 20 percent rating for moderate, incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe, incomplete paralysis of the sciatic nerve; a 60 percent rating for severe, incomplete paralysis of the sciatic nerve with marked muscular atrophy; and an 80 percent rating for complete paralysis of the sciatic nerve, manifested by symptoms including the foot dangles and drops, no active movement of the muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8521 assigns a 20 percent rating for moderate, incomplete paralysis of the external popliteal nerve; a 30 percent rating for severe, incomplete paralysis of the external popliteal nerve; and a 40 percent rating for complete paralysis of the external popliteal nerve, manifested by symptoms including foot drop and slight droop of first phalanges of all does, inability to dorsiflex foot, extension of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, and anesthesia covering entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. 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. See Id. The words "moderate", "moderately severe", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. Furthermore, use of descriptive terminology such as "moderate" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. The entire record must be considered. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. A September 2007 private treatment record reflects a diagnosis of lumbar radiculopathy, and an August 2009 note stated that the Veteran continued to exhibit symptoms consistent with lumbar intraspinal inflammation and radiculopathy. The Veteran has consistently reported pain radiating into his legs and feet causing tingling, numbness, and weakness. At each of his VA examinations he was found to have some decreased sensation in both feet. Right Lower Extremity In May 2010, VA examination showed deficits in the dorsum of his right foot and toes, for vibration, pain, light touch (absent), position sense, and abnormal sensation. In March 2010, VA examination showed numbness/tingling in his right lateral thigh and anterior calf. Although most of the Veteran's symptoms are sensory, some functional loss has also been noted in his right lower extremity on examination. Specifically, the Veteran's March 2010 VA examination reflects that the Veteran has a loss of movement in his great right toe. The examination also noted muscle atrophy in his right calf. The examiner also stated that the Veteran has decreased strength in his lower extremity. At his May 2010 VA examination, the VA examiner noted flexor weakness in the Veteran's right ankle and great toe. Given the evidence of marked weakness of the right ankle in dorsiflexion and great toe extension, decreased sensation to light touch and reduced perception of vibration in the right foot, and the evidence of pain and numbness in the right lower extremity, the Board finds that the Veteran's service-connected right lower extremity radiculopathy is manifested by a sensory impairment with functional limitation, which more nearly approximates a moderately severe disability as contemplated by DC 8520. Thus, the Board finds the Veteran's radiculopathy of the right lower extremity warrants a 40 percent rating, but no higher, beginning March 1, 2010, the date of the VA examination that first noted the Veteran had functional limitation, not just sensory symptoms, namely loss of movement of the right great toe. Despite the foregoing, the evidence does not reflect that the Veteran's radiculopathy is manifested at any time by significant muscular atrophy or any other findings which more nearly approximate severe, incomplete paralysis or complete paralysis of the sciatic nerve. Further, the evidence does not reflect that the Veteran's radiculopathy of the right lower extremity was manifest by any loss of muscle mass or function prior to March 1, 2010. Rather, the Veteran's statements, treatment records, and VA examinations suggests wholly sensory involvement during that time period. Thus, the Veteran's rating should be no more than moderate prior to March 1, 2010, which is reflected in the currently assigned 20 percent rating. Left Lower Extremity With regard to the Veteran's radiculopathy in his left lower extremity, none of the Veteran's examinations or treatment records show he has experienced a loss of muscle mass or function. However, sensory loss is noted. In March 2010 the examiner noted radiation pain down the Veteran's left buttock, posterior thigh, and lateral calf to his lateral heel and foot. At the Veteran's September 2008 VA examination, sensory examination showed decreased sensation and numbness to pain and light touch on the Veteran's left lateral foot, heel to great toe, and left lateral malleolus; in July 2009 and March 2010 the examination showed decreased sensation to light touch in his left lateral toes; and in May 2010 sensory deficits for pain and light touch (absent) were found in the Veteran's left lateral heel area. However, as noted, where involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In this case, only sensory impairment of the Veteran's left lower extremity was noted on the Veteran's neurological examinations. The Veteran's radiculopathy of his left lower extremity does not approximate severe incomplete paralysis, even considering his assertions. The evidence as a whole, including the VA examinations and the Veteran's statements, show that the disability is wholly sensory. Accordingly, a higher rating is not warranted. See 38 C.F.R. § 4.124a. Overall, a preponderance of the evidence is against the Veteran's claim for increased ratings above 20 percent for peripheral neuropathy of the left lower extremity since July 14, 2008, the effective date set by the RO, and of the right lower extremity prior to March 1, 2010. The Board also finds the preponderance of the evidence is against a rating higher than 40 percent for the right lower extremity since March 1, 2010. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board also has considered whether the Veteran is entitled to a greater level of compensation for his lower extremity radiculopathies on an extraschedular basis. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's radiculopathy of the lower extremities that would render the schedular criteria inadequate. The Veteran's main symptoms include numbness and decreased sensation, which are contemplated in the rating assigned. The Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2008. In the letter, the RO informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA medical examinations in September 2008, July 2009, March 2010, and May 2010. The examiners, medical professionals, listened to the Veteran's assertions, reviewed the Veteran's records, and performed the necessary tests. The examiners provided the Board with sufficient information to rate the Veteran's disabilities. Therefore, the Board finds that the examinations are adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER An increased rating in excess of 10 percent prior to April 7, 2009; in excess of 20 percent from April 8, 2009 to August 26, 2009; and in excess of 40 percent thereafter for service-connected herniated nucleus pulposus, post L5-S1 laminectomy to include degenerative disc disease, is denied. An increased rating of 40 percent, but no higher, for service-connected radiculopathy of the right lower extremity is granted as of March 1, 2010, subject to the provisions governing the award of monetary benefits. An increased rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity prior to March 1, 2010 is denied. An increased rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs