Citation Nr: 1320696 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 08-24 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine. 2. Entitlement to an initial rating in excess of 10 percent for sciatic neuropathy of the right lower extremity. 3. Entitlement to an initial disability rating in excess of 10 percent for sciatic neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from May 1971 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2009 and April 2011, the Veteran testified at hearings before Veterans Law Judges (VLJ). Transcripts of those hearings are of record. This appeal is being addressed by a panel, which includes the two VLJs that conducted the Board hearings. See 38 C.F.R. § 20.707 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). At the April 2011 Travel Board hearing, the Veteran waived his right to have a hearing before a third VLJ. Otherwise, in January 2010 and March 2012, the Board remanded the Veteran's claims on appeal for additional development. Following completion of the most recent development requested, the RO issued a Supplemental Statement of the Case (SSOC) in March 2013. The claims on appeal have since been returned to the Board for further appellate review. FINDINGS OF FACT 1. Since the initial grant of service connection, August 18, 2005, the Veteran's chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine has been manifested by degenerative changes, pain, occasional incapacitating episodes, as well as limitation of motion during flare-ups that more nearly approximates limitation of forward flexion greater than 30 degrees but not greater than 60 degrees and/or muscle spasm and guarding severe enough to result in an abnormal gait or abnormal spinal contour; forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the thoracolumbar spine, or prescribed bed rest by a physician has not been shown. 2. Sciatic neuropathy of the lower extremities, to include neuralgia, is manifested by subjective complaints of severe intermittent pain and sensory impairment; objective findings reflect normal motor and reflex testing, normal gait, negative single leg raising test, and a lack of muscle atrophy. CONCLUSIONS OF LAW 1. Since the initial grant of service connection, August 18, 2005, the criteria for a 20 percent rating for chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.71, 4.71a, Diagnostic Codes 5003, 5235-5243 (2012). 2. The criteria for an initial rating in excess of 10 percent for sciatic neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8720 (2012). 3. The criteria for an initial rating in excess of 10 percent for sciatic neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8720 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claims on appeal has been accomplished. Through a March 2010 notice letter, the Veteran was notified of the information and evidence needed to substantiate his claims. The March 2010 notice letter also provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the March 2010 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state agency, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. In any event, once a claimant disagrees with an initial determination, as is the case here, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2012); Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Furthermore, following the March 2010 notice letter, the Veteran's claims were readjudicated in July 2010 and March 2013 SSOCs. Consequently, a remand for further VCAA notification is not necessary. The Board also finds that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. VA treatment records are associated with the claims file as are relative private treatment records. In particular, medical records submitted by the Veteran's attorney from Mid-Florida Anesthesia Associates reflect the name of the Veteran but a birth date and social security number not consistent with that information of record related to him. Nonetheless, the medical records note various complaints, treatment, medications, as well as diagnoses that are consistent with other evidence associated with record, to include the Veteran's testimony. As such, the records have been considered in evaluating the Veteran's claims on appeal. Otherwise, the Veteran has not alleged that there are any outstanding medical records probative of his claims that need to be obtained. The Board also notes that the Veteran has been provided with a number of VA examinations during the course of the appeal period. The reports of examination document the Veteran's symptomatology and contain sufficient evidence by which to evaluate his disabilities in the context of the rating criteria. As such, the Board finds the VA examinations of record adequate for adjudication purposes. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App 505, 510 (2008). Chronic Lumbar Strain with Osteoarthritis and Degenerative Disc Disease of the Thoracic Spine By way of history, the Veteran filed an original claim for service connection for a back disability in September 1975. The RO denied the claim in August 1976 and the Veteran did not file an appeal. On August 18, 2005, the Veteran sought to reopen his claim. Subsequently, in a May 2007 rating decision, the RO granted service connection and assigned a 10 percent rating for chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine. The award was made effective from August 18, 2005. The Veteran has appealed the initial 10 percent rating assigned. The Veteran's chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine is evaluated as 10 percent disabling under Diagnostic Code 5003 for degenerative arthritis as well as under Diagnostic Code 5243 for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5243. Under diagnostic code 5003, degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Furthermore, under diagnostic code 5003, in the absence of limitation of motion, arthritis is rated as 10 percent disabling with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; and 20 percent disabling with X-ray evidence of involvement of 2 or more major joints or 2 or more major joint groups, with occasional incapacitating exacerbations. Id. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45(f) (2012). The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or for the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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. Id. Additionally, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5235-5242. Following the rating criteria, Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: (See also Plate V.)--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 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides: In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides: Round each range of motion measurement to the nearest five degrees. Note (5) provides: For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides: Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under Diagnostic Code 5243 for intervertebral disc syndrome, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5243. Following the rating criteria under Diagnostic Code 5243, Note (1) provides: for purposes of evaluations under Diagnostic Code 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. Note (2) provides: if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. As noted above, to warrant a higher rating to 20 percent for limitation of motion of the thoracolumbar spine, the evidence must demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine must not be greater than 120 degrees. In reviewing both private and VA treatment records as well as reports of VA examinations and disability benefits questionnaires (or DBQs), clinical findings in relation to the Veteran's range of motion show forward flexion of the thoracolumbar spine to be 80 degrees or better, and the combined range of motion of the thoracolumbar spine to be more than 120 degrees. Otherwise, private treatment records, while noting instances of restricted range of motion, do not reflect any report of range of motion of the Veteran's thoracolumbar spine in degrees. As such, based solely on the reported clinical findings for range of motion, the Veteran's thoracolumbar spine disability would not warrant a rating to 20 percent or higher. Here, forward flexion of the thoracolumbar spine is not shown to be restricted to 60 degrees or less nor is the combined range of motion of the thoracolumbar spine shown to be less than 120 degrees. The Board also notes that when evaluating musculoskeletal disability, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202, 204-7 (1995). See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Mitchell, the Court noted that an examination must comply with the requirements of § 4.40, and that the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. See Mitchell, 25 Vet. App. at 43-44. The examiner should, if feasible, assess the additional functional impairment in terms of the degree of additional range of motion loss beyond that shown clinically. The Veteran's description of his pain and functional loss has been noted in the reports of VA examination and DBQs, as well as in his hearing testimony. In a report of April 2007 VA examination, the Veteran reported pain in the center of his back in the thoracic and lumbar regions. He described his thoracic pain as "aching" and "like a spear sticking in me." He described his lumbar pain as being "like a hot poker." Flare-ups of the Veteran's spinal disability were noted to occur every 3-4 months and the flare-up would reportedly last a month. Precipitating factors were noted as lifting anything in front of the body, hammering, and "turning or stepping the wrong way." The Veteran further commented that he was unable to do manual labor and that he usually had to sit or lie down until symptoms resolved. In a report of May 2010 VA examination, the examiner noted the Veteran's report of flare-ups every three to four months, lasting one to two days, and being severe in nature. The Veteran's pain was reportedly increasing to where he needed an epidural steroid injection three times a year. The Veteran reported that he was limited in the distance he could walk due to a fear of causing a back spasm. Clinical evaluation at the time of examination revealed pain with active range of motion of the thoracolumbar spine. In a June 2012 VA DBQ, the examiner noted the Veteran's report of a constant pain in the thoracic spine which would increase after carrying grocery bags weighing 10 to 15 pounds. Sometimes the pain radiated to both buttocks, but mostly to the right knee and foot. The Veteran again described flare-ups occurring three times a year, requiring him to obtain an epidural steroid injection for pain relief. The Veteran also reported that during a flare-up he became less mobile. In a November 2012 VA DBQ, the examiner noted the Veteran's report of flare-ups once to twice every three months. The flare-ups reportedly lasted three weeks. The Veteran described that he was hardly able to walk and that he laid down around the house when the flare-ups occurred. The Veteran's hearing testimony is consistent with the history reported to medical examiners. In particular, at his February 2009 hearing, the Veteran testified that his back pain was present every day but it varied in degree and there were certain things that brought it on. The Veteran described the pain as dull, except that when his back was really bothersome the pain was sharp and went down his right leg. Furthermore, the Veteran commented that he was avoiding a great deal of normal activity to avoid increasing the severity of his back pain, and that he suffered from constant spasm. Otherwise, the Veteran testified about receiving epidural steroid injections to combat his back pain, his flare-ups and the affects of such on his mobility, and the inability to carry packages or other objects due to excruciating pain in his thoracic spine. With regard to objective evidence, during the course of the appeal period, private medical records have documented the Veteran's treatment for back pain and spasm, particularly in the thoracic spine area. The Veteran has received frequent epidural steroid shots, and these have been noted in private treatment records as improving the Veteran's back pain and symptoms for periods ranging from weeks to months. Medical records also document the Veteran's use of opioid medications. Diagnostic studies of the Veteran's thoracic spine and lumbar spine have reflected degenerative changes in the vertebrae and the intervertebral discs. In particular, an MRI (magnetic resonance imaging) scan of the Veteran's lumbar spine in February 2006 revealed minimal disc bulging at L5-S1, mild bilateral facet joint hypertrophic change at L5-S1 and L4-5, and moderate left-sided neural foraminal encroachment at L4-5 due to spondylitic spurring, disc bulging and loss of disc space height. A subsequent X-ray of the Veteran's lumbar spine in April 2007 revealed, in particular, moderate degenerative changes along with lumbosacral disc space narrowing, and multiple compression deformities in the lower thoracic region. A later July 2010 MRI of the Veteran's lumbar spine was noted as revealing mild to moderate multilevel facet degenerative joint disease, no spinal or foraminal stenosis, and small disc protrusions in the lower lumbar spine and lower thoracic spine. Additionally, a November 2012 MRI study of the Veteran's thoracic spine revealed, in particular, moderate disc desiccation throughout the thoracic spine, fusion across the disc space anteriorly at T6-7 and T7-8, severe degenerative disc disease at T8 through T12 with severe loss of disc space height and moderate anterior osteophyte formation, as well as intact neural foramina. Regarding functional impairment during flare-ups and any additional loss in range of motion of the thoracolumbar spine, the VA examiner in April 2007 reported that he could not provide an opinion concerning flare-ups because to do so would be speculative. The examiner also reported that he had never seen the Veteran during a flare-up. Otherwise, in a November 2012 DBQ, the VA examiner commented, As for flare-ups, it is difficult to tell how bad the limitation is, except the veteran states that he really cannot do much and stays around the house and lays around. It is difficult to be more specific as I have never seen him during a flare-up and the medical records do not help with clarification. The Court has held that in cases involving a speculative medical opinion, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The Court stated that, "[a]n examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion." Id. at 390. The Court also stated that, "it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data." Id. In the instant case, the Board finds the November 2012 VA examiner provides a sufficient explanation for his inability to provide an estimation of the additional loss in range of motion of the Veteran's thoracolumbar spine during flare-ups. The VA examiner is noted to have examined the Veteran, reviewed the Veteran's claims file and references the Veteran's medical history. As noted above, the examiner commented that he had never seen the Veteran during a flare-up, but went on to further comment that neither the Veteran's description of his condition during the flare-ups or the medical evidence of record helped with clarification. The explanation provided by the November 2012 VA examiner is exactly the type of situation that is contemplated by the Court in Jones: "the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." See 23 Vet. App. at 389. In the present case, the examiner concluded that it was not possible to estimate any additional limitation of motion of the Veteran's thoracolumbar spine during flare-ups-not because he would be speculating, but because the record before him did not allow for any such estimation. Notwithstanding the above, it remains the responsibility of the Board, in this instance, to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2 (2012). The Veteran reported during his February 2009 Board hearing that he had a problem standing upright after having bent over (i.e., flexion of the thoracolumbar spine). The examiner, in the report of May 2010 VA spine examination, noted that the Veteran was able to flex his spine to 80 degrees but had severe difficulty going back to a standing position and needed to use his hand to push himself up. The VA examiner in November 2012 noted that the Veteran suffered from chronic para lumbar and para thoracic muscle strain and spasm. The examiner also noted that the muscle spasm was chronic and spread to the muscles of the gluteal region and the hamstring musculature. He commented that the Veteran's range of motion tests were more consistent with muscle spasm and pain. It was explained that when a person flexed their back, the paraspinal muscles were stretched and this usually was not as painful as compared to when a person extended their back and the muscles were contracted and compacted. Range of motion testing of the Veteran's back on examination in November 2012 supported the examiner's opinion. At that time, the Veteran could forward flex to 90 degrees (normal) but had additional loss of extension of the thoracolumbar spine on repetitive motion testing. Furthermore, the Veteran reportedly told the examiner that "muscle relaxants" were more helpful than the opioids he was taking for his thoracolumbar spine pain. Otherwise, a private clinician who administered an epidural injection in February 2004 noted that the Veteran's pain appeared to be paraspinal muscular pain. Taking into account the severity of the degenerative changes in the Veteran's thoracolumbar spine, the several episodes per year of severe flare-ups (as reported by the Veteran) and the Veteran's report of loss in range of motion of the thoracolumbar spine at those times, the Board concludes a rating to 20 percent is supported by the evidence of record. Here, a 20 percent rating is consistent with the criteria requirements under Diagnostic Code 5003 for degenerative arthritis. The Veteran's flare-ups have been reported as occurring several times per year. As noted above, Diagnostic Code 5003 allows for a 20 percent rating in the absence of limitation of motion with occasional incapacitating exacerbations. (The Veteran was reported to have full flexion of the thoracolumbar spine in the November 2012 VA DBQ.) Also, in light of the Veteran's symptomatology and the severity and chronicity of his back spasms, the evidence more nearly approximates a 20 percent rating for muscle spasm and guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Otherwise, as discussed above, the evidence does not reflect symptomatology supportive of a 40 percent rating or higher. Forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the thoracolumbar spine has not been shown. The Board has also considered whether the Veteran's thoracolumbar disc disease would warrant a rating greater than 20 percent under Diagnostic Code 5243 for intervertebral disc syndrome. As noted above, under Diagnostic Code 5243--(Note 1), an "incapacitating episode" is defined for VA purposes as 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. The medical evidence of record does not reflect that a physician has prescribed bed rest for the Veteran due to his thoracolumbar spine disability, nor has the Veteran reported that such has occurred. Thus, a rating greater than 20 percent under Diagnostic Code 5243 for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months is not warranted. For all the foregoing reasons, the Board finds that since the initial grant of service connection, August 18, 2005, a rating to 20 percent for service-connected chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine is warranted. Sciatic Neuropathy of the Lower Extremities In a May 2007 rating decision, the RO granted service connection and assigned separate 10 percent ratings for sciatic neuropathy of the lower extremities. The awards were made effective from August 18, 2005. The Veteran has appealed the initial 10 percent rating assigned. The Board notes that sciatic neuropathy of the lower extremities is best rated as a form of peripheral neuropathy based on those diagnostic codes for peripheral nerves under 38 C.F.R. § 4.124a. See 38 C.F.R. § 4.20 (2012). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Under 38 C.F.R. § 4.124a, the term incomplete paralysis indicates impairment of function of a degree substantially less than the type of picture for complete paralysis, which has not been shown, given for 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 note preceding 38 C.F.R. § 4.124, Diagnostic Code 8510. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2012). The use of terminology such as "mild" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. The record as a whole is evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The manifestations of the Veteran's service-connected sciatic neuropathy associated with the right lower extremity and the left lower extremity are essentially the same, and as such, will be discussed together. The Veteran's sciatic neuropathy of the lower extremities (to include neuralgia under Diagnostic Code 8720) is rated for the sciatic nerve under Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran has described a radiating pain into his lower extremities due to his thoracolumbar spine disability. The pain has been variable and intermittent. A review of private medical records reflects, in particular, a February 2006 MRI scan of the lumbar spine which revealed, in part, left sided foraminal stenosis. A January 2006 private treatment record noted the Veteran's report of right leg numbness in the anterior thigh. A May 2006 private treatment record noted the Veteran's complaint that his left leg was bothering him. The report of April 2007 VA spine examination reflects an essentially normal motor and sensory evaluation. It was noted that the Veteran had a lack of vibration sensation bilaterally, and a decreased pain sensation to the right lower extremity and medial leg. In a report of May 2010 VA spine examination, testing of lower extremity reflexes was normal as were motor and sensory testing. In a report of May 2010 VA peripheral nerves examination, the Veteran was noted to complain of a burning ache in his back as well as a shooting pain down his buttock to his knees two to three times a year. Motor, sensory, and reflex testing were normal. Additionally, there was no muscle atrophy or abnormal muscle tone identified. The examiner's diagnosis was bilateral sciatic neuralgia (also identified as L4-L5 radiculopathy). It was commented that the affects of the disability were severe and that an MRI of the lumbar spine was needed to further address the problem. A June 2012 VA spine DBQ revealed a negative straight leg raising test; mild paresthesias and numbness of the lower extremities; as well as intermittent radicular pain, described as moderate, in the left lower extremity and severe in the right lower extremity. A June 2012 VA peripheral nerves DBQ identified complaints of mild paresthesias and numbness, along with decreased fatigue of the legs. Strength and reflex testing was normal with decreased sensation of the left upper anterior thigh. There was also noted decreased joint position sense of the right big toe. The examiner's finding was mild incomplete paralysis of the sciatic nerve. In a November 2012 VA spine DBQ, muscle strength, reflex, and sensory testing of the lower extremities was normal. A straight leg raising test was negative. Also, the examiner noted the Veteran's report of severe, intermittent radiating pain in the lower extremities, but without paresthesias or numbness. In a discussion of the Veteran's condition following examination, the examiner commented as follows, The Veteran has absolutely no sign of any sciatic pathology. His straight leg raising test and sitting root tests were totally normal. He had excellent strength in his knees and ankles and toes and was able to easily dorsi flex and plantar flex his feet. His gait was totally normal and brisk. His MRI of the lumbar spine most recently done in 2010, failed to explain any claimed sciatic pathology. No EMGs have been performed. The Board notes that the February 2006 and July 2010 MRIs of the lumbar spine reflect different findings. The February 2006 MRI is noted to show "spondylitic spurring extending into the left neural foramen and there is resultant moderate left-sided neural foraminal encroachment." The subsequent July 2010 MRI is reported as not identifying any left sided neural foramen encroachment/stenosis. The Veteran's complaint has been of an intermittent, radiating pain into his lower extremities. Accepting, in this case, that the evidence does support neural foraminal encroachment and provides a diagnostic basis for the Veteran's sciatic neuropathy, the objective medical evidence does not reflect any lower extremity impairment on motor or reflex testing. Sensory testing has revealed only periods of paresthesias and numbness, as well as the lack of vibration sensation bilaterally and a decreased pain sensation to the right lower extremity and medial leg. Furthermore, none of the objective straight leg raising tests performed on the Veteran during VA examinations has produced any of the claimed lower extremity pain. As noted in the May 2010 VA peripheral nerves examination, the Veteran has reported a shooting pain down his buttock to his knees two to three times a year. The VA examiner commented that the affects of the symptoms were severe. The Veteran also testified in April 2011 that his legs occasionally would buckle when walking. The Board has considered and weighed the May 2010 VA examiner's comment and the Veteran's own report concerning the nature and severity of his sciatic neuropathy. The Veteran is competent to report experiencing pain in his lower extremities. The sciatic neuropathy in its severest form, as reported by the Veteran, occurs a few times a year. The objective medical evidence during the course of the appeal period, however, has demonstrated only limited sensory impairment of the lower extremities. In weighing the evidence before it, the Board finds the objective test findings to be persuasive and more probative of the severity of the Veteran's sciatic neuropathy, which the Board finds approximates mild incomplete paralysis, especially in light of the limited occurrence of the Veteran's severe pain in his lower extremities. The Board's finding is further supported by the conclusions of the VA examiners in June 2012 and November 2012. The Veteran's complaints relating to his sciatic neuropathy have been consistent throughout the appeal period. The June 2012 examiner identified the sciatic nerve impairment as being mild. The examiner in November 2012 reported a lack of sciatic nerve pathology. Therefore, the Board finds that since the initial grant of service connection, ratings in excess of 10 percent for sciatic neuropathy of the right lower extremity and of sciatic neuropathy of the left lower extremity under Diagnostic Codes 8520 and 8720 (for neuralgia) are not warranted. In so finding, the Board notes that the evidence does not support that the Veteran's bilateral lower extremity nerve impairment results in moderate, moderately severe, or severe incomplete paralysis of the sciatic nerve, or otherwise in complete paralysis of the sciatic nerve. Additional Consideration under 38 C.F.R. § 3.321(b)(1) The RO, in adjudicating the Veteran's claims, did not consider whether a higher evaluation was warranted for the Veteran's disabilities based on an extra-schedular rating. Notwithstanding that fact, the question of an extra-schedular rating is a component of the Veteran's claims for increased ratings. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); see also VAOPGCPREC 6-96. Consideration has been given by the Board as to whether the schedular evaluations are inadequate, requiring that the RO refer any of the claims to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation. Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this regard, the analysis must include a discussion of whether the rating criteria adequately address all of the claimant's symptomatology. The Veteran's primary symptoms associated with his service-connected thoracolumbar spine disability are pain, limitation of motion, as well as muscle spasm. The rating criteria under 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, contemplate these symptoms. Additionally, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome, the Veteran's symptoms of pain, limitation of motion, and muscle spasm are also contemplated when considering "incapacitating episodes." As noted above, the regulation defines, in part, incapacitating episodes as requiring bed rest prescribed by a physician. Also, the manifestations of the Veteran's bilateral sciatic neuropathy (and/or neuralgia) have been intermittent pain and sensory impairment. Such manifestations of disability are contemplated by the schedular criteria under 38 C.F.R. § 4.124a, Diagnostic Codes 8520 and 8720. Thus, while the evidence of record indicates that the Veteran's disabilities do have limiting affects on his everyday activities and also restrict his employment options, the first step of the Thun analysis, whether the rating criteria adequately address all of the claimant's symptomatology, has been met. As such, the Board's extra-schedular analysis ends, and consideration of the second step-whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization-is not warranted. Therefore, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture related to his thoracolumbar spine and bilateral lower extremity nerve disabilities requires the assignment of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, supra. Therefore, for all the foregoing reasons, the Board finds that since the initial grant of service connection, the criteria for a rating to 20 percent for chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine, but no higher, have been shown. Also, since the initial grant of service connection, the criteria for ratings in excess of 10 percent for sciatic neuropathy (to include neuralgia) of right lower extremity and the left lower extremity have not been shown. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for higher ratings, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER A 20 percent rating for chronic lumbar strain with osteoarthritis and degenerative disc disease of the thoracic spine is granted from August 18, 2005, subject to the laws and regulations governing the payment of monetary awards. An initial rating in excess of 10 percent for sciatic neuropathy of the right lower extremity is denied. An initial rating in excess of 10 percent for sciatic neuropathy of the left lower extremity is denied. ____________________________ ___________________________ JAMES A. MARKEY ERIC S. LEBOFF Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _______________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs