Citation Nr: 1322042 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-38 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 10 percent through August 9, 2011, and in excess of 20 percent beginning August 10, 2011, for service-connected spondylolisthesis of L5 on S1 (referred to hereinafter as a low back disability). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The previously established 10 percent evaluation for a service-connected low back disability was continued therein. The Veteran perfected an appeal as to this determination. In July 2011, the Board remanded this matter for additional development. This development has been completed or at least substantially completed. Adjudication thus may proceed if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). No potential problems with adjudication are found at this time. Accordingly, the following determination is made based on review of the Veteran's claims file and Virtual VA "eFolder." FINDINGS OF FACT 1. For the period on appeal through August 9, 2011, the Veteran's low back disability did not manifest forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, severe muscle spasm or guarding resulting in abnormal gait or spinal contour, or incapacitating episodes. Beginning August 10, 2011, the Veteran's low back disability has not manifested forward flexion of 30 degrees or less, favorable ankylosis, or incapacitating episodes. 2. Mild right sciatic nerve radiculopathy associated with the Veteran's low back disability was present by September 20, 2005. 3. Mild left sciatic nerve radiculopathy associated with the Veteran's low back disability has been present since February 1, 2011. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent through August 9, 2011, and in excess of 20 percent beginning August 10, 2011, for a service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5238 (2012). 2. The criteria for a separate evaluation of 10 percent, but no higher, for right sciatic nerve radiculopathy associated with a low back disability have been met effective September 20, 2005. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5242, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520, 8620, 8720 (2012). 3. The criteria for a separate evaluation of 10 percent, but no higher, for left sciatic nerve radiculopathy associated with a low back disability have been met effective February 1, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5242, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520, 8620, 8720 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. VA must notify the claimant and his representative prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generic rather than specific notification of the evidence needed to substantiate a higher evaluation claim must be provided. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)). Information on how evaluations and effective dates are assigned also must be provided. Id.; Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)). None is found. A letter dated in October 2006 informed the Veteran and his representative at that time of the criteria for establishing a higher evaluation, the evidence required in this regard, his and VA's respective duties for obtaining evidence, and how evaluations and effective dates are assigned. This letter is dated prior to the initial adjudication by the AOJ, which in this case also is the RO, via the February 2007 rating decision. In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes a requirement to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Service treatment records and VA treatment records regarding the Veteran have been obtained by VA. The most recent of the VA treatment records were obtained in compliance with the Board's July 2011 remand. No private treatment records have been obtained by VA. The Veteran has had the opportunity to identify such records pertinent to his service-connected low back disability, but he has not done so. He instead submitted such records on his own behalf. VA medical examinations were conducted in December 2006 and, as directed by the Board's remand, in August 2011. The latter examiner reviewed the claims file, but the former did not. There is no indication either examiner reviewed the "eFolder." However, as the Veteran gave a reasonably accurate account of his medical history to both, the lack of claims file and "eFolder" review is of no great import. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). Both examiners also interviewed the Veteran and undertook a physical assessment of him. These actions have provided sufficient detail so that the determinations made herein are fully informed. As such, the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication on the merits that has not been completed. The record also does not indicate any further development. Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Appellate review therefore may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Higher Evaluation A. Schedular Evaluations are assigned pursuant to VA's Schedule for Rating Disabilities. Separate Diagnostic Codes identify various disabilities and the criteria for a specific evaluation to be assigned for that disability. The evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C.A. § 1155. An evaluation is assigned by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the evaluation criteria. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that evaluation of the disability is accurate. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower evaluation is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however. 38 C.F.R. § 4.3. He thus prevails if the evidence supports a higher evaluation or is in relative equipoise but does not prevail when it is against a higher evaluation. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where entitlement to compensation has already been established and a higher evaluation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Consideration nevertheless must be given to whether a staged evaluation is or staged evaluations are warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). In staged evaluations, two or more evaluations are assigned because a disability meets the criteria for one evaluation during one period on appeal but meets the criteria for another evaluation or evaluations during another or other periods on appeal. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. 38 C.F.R. §§ 4.40, 4.59. It also may be due to excess fatigability or incoordination. 38 C.F.R. § 4.45. A higher evaluation for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's service-connected low back disability has been evaluated analogously under 38 C.F.R. § 4.71a, Diagnostic Code 5238. Diagnostic Code 5238 addresses spinal stenosis, which is similar to spondylolisthesis. It, like other back conditions, is evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Evaluations are to be made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching under the General Formula. For the thoracolumbar spine, a 10 percent evaluation is merited when forward flexion is greater than 60 degrees but not greater than 85 degrees, combined range of motion is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness is present but does not result in abnormal gait or abnormal spinal contour, or there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned when forward flexion is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine results in a 50 percent evaluation. The maximum 100 percent evaluation is reserved for unfavorable ankylosis of the entire spine. Normal range of motion is from 0 to 90 degrees forward flexion and from 0 to 30 degrees extension, left and right lateral flexion, and left and right lateral rotation for a combined range of motion of 240 degrees. General Formula, Note (2); 38 C.F.R. § 4.71a, Plate V. Normal combined range of motion is 240 degrees. Id. The General Formula additionally provides for the assignment of separate evaluations under appropriate Diagnostic Codes for any objective neurologic abnormalities associated with a disease or injury of the spine. General Formula, Note (1). This includes, but is not limited to, bowel or bladder impairment. According to Diagnostic Code 5243, intervertebral disc syndrome (IVDS) is evaluated under either the above General Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever results in the higher evaluation. Incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months is needed for a 10 percent evaluation. A 20 percent evaluation is for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months results in award of a 40 percent evaluation. The maximum evaluation of 60 percent is awarded for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula, Note (1). The probative value of the evidence must be assessed. 38 C.F.R. § 4.6. In other words, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert, 1 Vet. App. at 49. This includes the lay evidence in addition to the medical evidence. The competency and credibility of the lay evidence therefore must be addressed. Layno v. Brown, 6. Vet. App. 465 (1994) (noting that competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Only the most relevant evidence need be discussed, however, even though all the evidence has been reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). In a December 1998 private treatment record, the Veteran complained of low back and right lower extremity pain. Straight leg raise testing was positive on the right but negative on the left. Right lumbar radiculopathy was diagnosed. Persistent mild back pain and 1 to 2 day flare ups with pain radiating down the right leg due to lifting were reported by the Veteran at a December 2004 VA medical examination. He indicated that he rests in bed or in a chair during them, since he is virtually unable to move at all, but that this is rare because he usually is able to avoid situations that would trigger a flare up. Assessment showed that straight leg raise testing was negative bilaterally. Reflexes and sensation in the Veteran's lower extremities were normal. A November 2005 VA treatment record documents that impotence had been diagnosed by that time. The Veteran reported suffering from chronic low back pain which radiated to both his legs in his September 20, 2006, claim. He also reported lost range of motion. Upon VA medical examination in December 2006, the Veteran complained of constant lower back pain rated as a 7 on a scale of 1 to 10. He further complained that the pain increased to a 9 with bending, lifting, and excessive activity and that it occasionally radiates to both lower extremities. Numbness and tingling in the right toes were noted by him when it does. The Veteran indicated that he sometimes has to lie down to rest after excessive activity, though he denied flare-ups. He also denied bowel and bladder incontinence. Assessment showed that he walked without difficulty, moved without apparent pain, and had no list or scoliosis. His low back was not tender and did not manifest spasms. The Veteran's lumbar spine range of motion was to 90 degrees flexion, to 15 degrees extension and lateral bending bilaterally, and to 45 degrees lateral rotation bilaterally. Repetition did not increase his pain or change these measurements. There was no indication of fatigue, weakness, or lack of endurance. The Veteran's heel and toe gait was normal. Straight leg raise testing was negative. Reflexes were hypoactive but intact. The examiner determined that there had been no significant change in the Veteran's low back since his last VA medical examination. The Veteran reiterated that he has chronic low back pain and "a great deal of limited motion" in his March 2007 notice of disagreement. He stated that he was extremely sore after the aforementioned examination, and expressed his belief that he overexerted himself to please the examiner. An October 2007 VA treatment record contains the Veteran's indication that his low backaches are not a major problem. In his December 2007 appeal to the Board, he reported that he has trouble bending even a small amount. An October 2008 VA treatment record documents the Veteran's denial of bladder problems. August 2009 VA treatment records document that he complained of an incident of acute symptoms to include severe low back pain and leg weakness. It was noted that he did not have radicular symptoms. Upon assessment, his reflexes were absent. The Veteran's lower extremities were not found to be weak. His gait was unimpaired. Upon VA medical examination on August 10, 2011, the Veteran reported constant low back pain rated as a 5 which is dull but has some sharp components. He indicated that it radiates down his legs and that there occasionally is numbness in his feet. He further indicated that he has 10 minute flare ups every other day during which his pain is rated as a 9 and there is additional limitation of motion and functional impairment. The Veteran additionally reported low back stiffness, spasms, decreased motion, fatigue, weakness, and numbness as well as bilateral paresthesias and weakness in his feet. He denied bowel and bladder problems as well as incapacitating episodes within the past 12 months. Assessment showed that his gait was normal despite his use of a cane. Range of motion was to 60 degrees forward flexion, to 10 degrees extension, to 15 degrees bilateral lateral flexion, to 30 degrees right lateral rotation, and to 35 degrees left lateral rotation with pain throughout. Repetition increased the Veteran's pain but did not change these measurements. Straight leg raise testing was positive bilaterally. There was no muscle atrophy in the Veteran's legs. Muscle strength and tone was good, and sensation was normal. Reflexes were hypoactive. Longstanding bilateral S1radiculopathy was diagnosed based on electromyogram (EMG) findings. In a private treatment record dated later in August 2011, the Veteran's complaint of low back pain which occasionally is sharp, radiates down his legs, and is worse with bending is set forth. He also complained of frequent aching. He denied leg numbness. It was noted that he had good leg strength. Upon assessment, the Veteran's gait was normal. There was mild tenderness in his low back. Straight leg raise testing was negative. Motor strength and tone in the Veteran's legs was normal, as was sensation. Reflexes were decreased with the exception of at the ankle, where they were absent. It was clarified that the bilateral S1 radiculopathy shown by EMG was longstanding in that it had been present for at least 6 months. The Board finds, given the above, that an evaluation in excess of 10 percent for the Veteran's service-connected low back disability for the period on appeal through August 9, 2011, is not warranted under the General Formula. None of the criteria for even the next highest evaluation of 20 percent were met during this period. Discussion of the criteria for even higher evaluations of 40 percent, 50 percent, and 100 percent is thus unnecessary. There is no indication of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Guarding was not referenced at all. Muscle spasms specifically were not found. At no point were they reported by the Veteran. Even if there had been guarding or muscle spasms, they were not so severe as to affect gait or spinal contour. The Veteran's gait was found to be unimpaired, and he walked without difficulty. No mention was made of reversed lordosis or abnormal kyphosis. Scoliosis as well as list specifically were not found. In addition, there is no indication of forward flexion greater than 30 degrees but not greater than 60 degrees or of combined range of motion not greater than 120 degrees. The Veteran's forward flexion initially and with repetition was much higher than 60 degrees the one time it was measured during the December 2006 VA medical examination. Indeed, it was a normal 90 degrees. Combined range of motion was much greater than 120 degrees at 225 degrees. This includes right and left lateral rotation of 45 degrees, or 15 degrees greater lateral rotation than normal on each side. It is of no consequence whether or not the Veteran's motion was with pain. Painful motion is not in and of itself functional loss, and it does not constitute limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's motion specifically was found not to have been impacted by fatigue, weakness, or lack of endurance. Reference was not made to an impact by any similar problem. Acknowledgement is given to the Veteran's statement that he overexerted himself at the VA medical examination. Inferred therefrom is his report that his forward flexion and combined range of motion usually were less than what was found. Acknowledgement also is given to the Veteran's reports of trouble bending even a small amount and of having "a great deal of limited motion." He is a lay person because there is no indication he has a medical background. The Veteran was competent to make his reports because his typical forward flexion and combined range of motion were experienced by him. Layno, 6 Vet. App. at 465. Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). Here, no determination need be made regarding the Veteran's credibility in reporting that his forward flexion and combined range of motion usually were less than what was found at the VA medical examination. Presuming this to be true does not mean that he usually had forward flexion greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees. It rather could mean that he had forward flexion to any degree less than the measured 90 degrees or combined range of motion at any degree less than the measured 225 degrees. This includes forward flexion between 61 and 89 degrees and combined range of motion from 121 to 224 degrees. Without measurements other than those at the VA medical examination, there is no way to tell. Pure speculation is insufficient when considering the degree of disability present. 38 C.F.R. § 3.102. So is remote possibility. Of note in this regard is that the Veteran's usual forward flexion having been greater than 30 degrees but not greater than 60 degrees or his usual combined range of motion having been not greater than 120 degrees is extremely unlikely. This indeed would represent a very substantial decrease from the forward flexion and combined range of motion measured at the VA medical examination. Overexertion at this examination would be expected to have caused only a slight to moderate increase instead of a substantial increase in forward flexion and combined range of motion. The above factors lead to the conclusion that the Veteran was not credible in reporting trouble bending even a small amount and having "a great deal of limited motion." These reports are inconsistent with another of his reports. He once indicated that his low backaches were not a major problem. It follows that such they did not cause major reduced motion in any direction. The Veteran's reports also are inconsistent with the other evidence. A lack of notation where notation would be expected may be considered. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). Treatment records concerning the low back, whether VA or private, would be expected to reveal significantly reduced forward flexion or combined range of motion if such had existed. Yet they do not. Neither does the aforementioned VA medical examination. In sum, it appears that the Veteran is motivated by his self-interest in financial gain to exaggerate the severity of his forward flexion and combined range of motion limitations. The Veteran is competent to report having had flare-ups for the same reason as above. He also is credible to the extent that he experienced flare-ups. Flare-ups are facially plausible. The Veteran's reports in that regard are consistent. He reported flare-ups prior to the period on appeal through August 9, 2011. Although he denied flare-ups during this period, he did report times when his symptoms are exacerbated. His reports also are consistent with the other evidence. In particular, the Veteran was seen once for an episode of acute symptoms. It is significant that, while he noted additional reduced forward flexion or combined range of motion during flare-ups prior to the period on appeal, he did not do so during the period on appeal. To the extent there was any reduced forward flexion or combined range of motion, no measurements were made. Concluding there was forward flexion greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees during flare-ups accordingly would require resort to pure speculation, like above. Given the measurements at the VA medical examination, such further is only a remote possibility. The above similar discussion is reiterated in this regard. Of final note is that the Veteran much more often was not experiencing a flare-up than he was experiencing one. Treatment for flare ups or episodes of acute symptoms would be expected, but he did so only once. He himself indicated that only certain activities trigger flare-ups both prior to and during the period on appeal, and he also indicated that he took precautions to avoid these activities prior to the period on appeal. There is no reason to believe he stopped taking these precautions during the period on appeal. With respect to the period beginning August 9, 2011, the Board finds that an evaluation in excess of 20 percent for the Veteran's service-connected low back disability is not warranted under the General Formula. The criteria for even the next highest evaluation of 40 percent have not been met. Discussion of higher evaluations of 50 percent and 100 percent is thus unnecessary. There is no indication that the Veteran's entire thoracolumbar spine is favorably ankylosed. Indeed, there is no indication that any part of his thoracolumbar spine is favorably ankylosed. Ankylosis is immobility and consolidation of a joint. Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007); Lewis v. Derwinski, 3 Vet. App. 259 (1992); Nix v. Brown, 4 Vet. App. 462 (1993); Shipwash v. Brown, 8 Vet. App. 218 (1995). In other words, it is stiffening or fixation of a joint. Dinsay v. Brown, 9 Vet. App. 79 (1996). The difference between favorable and unfavorable ankylosis is the position of the ankylosis and whether or not it causes associated difficulties. General Formula, Note (5). Ankylosis, whether favorable or unfavorable, of the Veteran's thoracolumbar spine was not mentioned at the August 10, 2011, VA medical examination. Mention would be expected if ankylosis had been present. The Veteran further had some amount of thoracolumbar motion in all directions initially and with repetition at this examination. He also had some but a different amount of thoracolumbar motion in all directions initially and with repetition at the VA medical examination performed during the period on appeal through August 9, 2011. It follows that there has not been immobility, consolidation, stiffening, or fixation of his thoracolumbar spine at a specific point. Additionally, there is no indication of forward flexion to 30 degrees or less. The Veteran's forward flexion initially and with repetition was much higher the one time it was measured during at the August 10, 2011, VA medical examination. Indeed, it was to 60 degrees. That there was pain throughout is of no consequence, just as it was not above. No reference was made to the Veteran's forward flexion being impacted by fatigue, weakness, lack of endurance, or the like. The Veteran is competent in reporting flare-ups that result in greater than normal limitation of motion and functional impairment for the same reason as above. He also is credible. Flare ups causing greater than normal limitation of motion and functional impairment are facially plausible. No reason for doubt in this regard is detected. However, no measurements of forward flexion during a flare-up were made. None were estimated, whether by a medical professional or by the Veteran. Concluding forward flexion is to 30 degrees of less during flare-ups accordingly once again would require resort to pure speculation. Given the measurements at the August 10, 2011, VA medical examination, such further is only a remote possibility. The above similar discussion is reiterated in this regard. Of final note is that the Veteran much more often is not experiencing a flare-up than he is experiencing one. Treatment for flare-ups or episodes of acute symptoms would be expected, but there has been none. He himself indicated that they occur for only a few minutes every other day. The Board next finds that a separate evaluation beginning at any point during either of the periods on appeal is not warranted under the General Formula for bowel or bladder impairment associated with the Veteran's low back disability. There is no indication of bowel or bladder impairment. No complaints of such were lodged by the Veteran. He indeed rather always denied such. He is competent in this regard for the same reason as above. He also is credible because there is no reason for doubt. No objective findings of bowel or bladder impairment have been made, whether upon VA medical examination or otherwise. A separate evaluation beginning at any point during either of the periods on appeal further is not warranted under the General Formula for erectile dysfunction. Objective findings exist in that VA treatment records contain a diagnosis of impotence. Yet it never has been attributed to the Veteran's low back disability. Regarding the Veteran's lower extremities, bilateral S1 radiculopathy was diagnosed following an EMG in August 2011. An objective neurologic abnormality in each lower extremity associated with his low back disability therefore exists. The radiculopathy was noted to be longstanding or at least of 6 months duration. It was around by February 2011, in other words. This accounts for the Veteran's report of radiation of his low back pain with occasional numbness during the period beginning August 10, 2011. It also accounts for the objective findings to include decreased reflexes and positive straight leg raise testing therein, notwithstanding that decreased motor strength and sensation were not found. With respect to the possibility that bilateral S1 radiculopathy was present earlier than February 2011, the Veteran reported occasional radiation of his low back pain with numbness and tingling on the right as well as an acute episode such pain with associated leg weakness during the period on appeal through August 9, 2011. He is competent to do so for the same reason as above. He also is credible. The Veteran's reports are consistent. No reason is found for doubt. Objective findings include bilateral decreased reflexes in both lower extremities. However, decreased motor strength and sensation were not found in either extremity. This is despite the Veteran's reports of some numbness, tingling, and weakness. It follows from this inconsistency with the other evidence that these reports, though competent for the same reason as above, are of questionable credibility. Straight leg raise testing also was negative bilaterally. Finally, no objective neurologic abnormality in either lower extremity associated with the Veteran's low back disability was diagnosed. Background evidence concerning the Veteran's left lower extremity is not notable. Straight leg raise testing indeed was negative on the left in December 1998. The effective date for left S1 radiculopathy therefore is February 2011. Acknowledgement is given to the Veteran's December 1998 diagnosis of right lumbar radiculopathy. This diagnosis was made well before he filed the instant claim. There is no indication that it was a temporary diagnosis. As such, it goes to show that the right lower extremity objective neurologic abnormality associated with the Veteran's low back disability was present by then. A conflict therefore exists between it and the other evidence. This includes the aforementioned lack of diagnosis during the period on appeal through August 9, 2011. It also includes the fact that straight leg raise testing was negative at the December 2004 VA medical examination prior to this period. No reason is found to afford more weight the evidence on either side. Thus, it is in relative equipoise. Reasonable doubt accordingly is resolved in the favor of the Veteran such that he is deemed to have had right S1 radiculopathy since at least December 1998. The effective date of an award of compensation generally cannot be earlier than the date of receipt of the claim for it. 38 U.S.C.A. § 5110(a). An exception to this general rule exists, however, for awards of increased compensation. An increase is effective as of the earliest date an increase in disability was factually ascertainable if the evidence demonstrates that the increase occurred within 1 year preceding the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). An increase in the Veteran's low back disability has not been found. Yet a separate evaluation for right S1 radiculopathy is part and parcel to his claim for an increase. It is factually ascertainable that such an evaluation was warranted by 1 year prior to receipt of the Veteran's claim on September 20, 2006. The earliest effective date that can be awarded, however, is one year prior or September 20, 2005. For neurologic conditions, evaluations are assigned in proportion to motor and sensory impairment. 38 C.F.R. § 4.120. Wholly sensory involvement is evaluated at the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The maximum evaluation for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum evaluation for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis for the sciatic nerve. Id. For neuralgia, which is characterized usually by a dull and intermittent pain, the maximum evaluation absent tic douloureux or trifacial neuralgia is equal to that for moderate incomplete paralysis. 38 C.F.R. § 4.124. Many diagnostic codes concern paralysis, neuritis, and neuralgia of various nerves in the lower extremities. The precise nerve affected by the Veteran's right and left S1 radiculopathy has not been identified. The Diagnostic Codes for the sciatic nerve are utilized here because doing so is most advantageous to the Veteran. Indeed, they afford higher evaluations that the Diagnostic Codes for other nerves. 38 C.F.R. § 4.124a, Diagnostic Code 8520, addresses paralysis of the sciatic nerve. Diagnostic Codes 8620 and 8720 respectively address neuritis and neuralgia of the sciatic nerve. A 10 percent evaluation is for mild incomplete paralysis. Moderate incomplete paralysis merits a 20 percent evaluation, while a 40 percent evaluation requires moderately severe incomplete paralysis. Severe incomplete paralysis with marked muscle atrophy merits an evaluation of 60 percent. The maximum 80 percent evaluation is reserved for complete paralysis such as when the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Mild, moderate, and severe are not defined. Mild is generally defined as "not being or involving what is extreme" or "not severe: temperate." Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as "tending toward the mean or average amount or dimension." Id. at 798. Severe is generally defined as "of a great degree: serious." Id. at 1140. There is no indication of either of the Veteran's feet dangling and dropping, him being incapable of active movement of the muscles below either knee, or flexion of either knee being weakened or lost. He reported that his pain initially was intermittent and later became constant. He also reported that it was dull with some sharpness, but he did not report that it ever was excruciating. The Veteran is competent in these reports for the same reason as above. He is credible because no reason is found for doubt. However, it is reiterated that he primarily has manifested bilateral reflex impairment. They were decreased persistently and sometimes were decreased to the point of not being elicited. The Veteran has not manifested any impairment in motor strength or sensation in either of his lower extremities, however. Muscle atrophy, let alone marked muscle atrophy, specifically was not found in either lower extremity. No other lower extremity impairment was mentioned. In sum, the severity of the Veteran's right and left S1 radiculopathy is mild. A 10 percent evaluation for each separate from that for the Veteran's low back disability accordingly is granted. Turning lastly to the IVDS Formula, the Board finds that it is not applicable for either the period on appeal through August 9, 2011, or for the period beginning August 10, 2011. The Veteran has not been diagnosed with IVDS or any similar condition. Even assuming he did have IVDS or a similar condition, there is no indication of any incapacitating episodes of any duration. Nothing of the sort was reported by the Veteran. He denied incapacitation within the past year at the August 10, 2011, VA medical examination. While he did seek treatment once for acute symptoms, as discussed above, there is no indication that bed rest was prescribed by the medical professional he saw. There additionally is no indication of bed rest prescribed by a medical professional otherwise. Acknowledgement is given to the Veteran's report of sometimes having to lie down to rest due to his low back symptoms. He is competent to so report for the same reasons as above. He is credible because there is no reason for doubt. To the extent, if any, this implies bed rest, it is clear that it was self-imposed instead of prescribed. It was at the Veteran's own initiative rather than that of a medical professional, in other words. Use of the IVDS Formula, even if applicable, therefore would result in a noncompensable evaluation. 38 C.F.R. § 4.31. The 10 percent evaluation for the period through August 9, 2011, and the 20 percent evaluation for the period beginning August 10, 2011, assigned pursuant to the General Formula thus stand as the higher evaluations. Consideration has been given to reasonable doubt in making the above determinations. However, it does not apply because they were based on the preponderance of the evidence. Consideration also has been given to staged evaluations within the period on appeal through August 9, 2011, and within the period on appeal beginning August 10, 2011. None are warranted because the above determinations cover these entire periods. B. Extraschedular The alternative to assigning an evaluation schedularly is to assign one on an extraschedular basis. 38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). There are 3 steps to be taken regarding extraschedular evaluations. Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the evidence presents such an exceptional disability picture that the applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made. If these criteria are inadequate, it second must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. Here, neither the Veteran nor his representative specifically has argued for an extraschedular evaluation for his service-connected low back disability. There is no indication that this disability cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above. The Veteran's symptoms, which primarily have consisted of pain, decreased range of motion, and associated lower extremity pain specifically are accounted for by these criteria and associated statutes, regulations, and caselaw. Evaluation has been based on these sources. Higher evaluations and separate evaluations exist pursuant to them. As explained above, however, an evaluation of 10 percent for the period on appeal through August 9, 2011, and of 20 percent beginning August 10, 2011, with a separate evaluation of 10 percent for right S1 radiculopathy effective September 20, 2005, and for left S1 radiculopathy effective February 1, 2011, accurately described and describes the severity of the Veteran's low back disability and associated neurologic abnormalities. The effect this disability and associated abnormalities had and have on him is encompassed by the aforementioned evaluations, in other words. This includes that he takes medication, wears a back brace, and uses a cane. It also includes that he sometimes cannot climb a ladder, work around the house, or do chores and that he has difficulty with prolonged standing and walking, transfers such as in the bathroom, brushing his teeth, washing his hands, and shaving. Reports of such by him are competent for the same reason as above. They are credible because no reason is found for doubt. Because the applicable schedular rating criteria are adequate, the Board does not find an exceptional low back disability picture. Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary. Yet it is of note that there is no indication that the Veteran ever has been hospitalized due to his disability. Of further note is that some interference with employment is conceded, as the Veteran thereafter indicated retiring from his position as a ROTC instructor in 2007 at least partially due to his low back (he noted his retirement followed the death of his first wife at a March 2012 VA psychiatric examination). Yet this interference did not rise to the level of marked. The Veteran indeed indicated at the December 2006 VA medical examination that he had lost no time from work in the past 12 months as a result of his disability. In sum, referral for consideration of the assignment of an extraschedular rating is not warranted. III. Total Disability Evaluation Based on Individual Unemployability "A request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities . . . as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran has not contended that his service-connected low back disability is so severe that it has rendered him unable to work. The evidence further does not indicate this to be the case. It is reiterated that he was able to work as a ROTC instructor until 2007 notwithstanding his low back disability. The examiner who conducted the August 10, 2011, VA medical examination agreed that the Veteran no longer is capable of such physical employment but opined that he is capable of sedentary employment. Noted in this regard was that he has a marketing degree. Of further note is that his involvement in managing his wife's store was acknowledged at the VA psychiatric examination in March 2012. Consideration of a TDIU as a component of this matter therefore is not warranted. ORDER An evaluation in excess of 10 percent through August 9, 2011, and in excess of 20 percent beginning August 10, 2011, for the service-connected low back disability is denied. A 10 percent evaluation for right sciatic nerve radiculopathy is granted effective September 20, 2005, subject to the statutes and regulations governing the payment of monetary benefits. A 10 percent evaluation for left sciatic nerve radiculopathy is granted effective February 1, 2011, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs