Citation Nr: 1322070	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  07-30 987	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an initial rating higher than 20 percent for lumbar spine degenerative disc disease (DDD), prior to November 29, 2011.
 
2.  Entitlement to an initial rating higher than 40 percent for lumbar spine DDD on and after November 29, 2011.

3.  Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy.

4.  Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy.

5.  Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected lumbar spine DDD.

6.  Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected lumbar spine DDD.

7.  Entitlement to service connection for vertigo.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active military duty from October 1986 to February 1987, with service in the Army Reserve before and after this date.  These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  In that decision, the RO denied entitlement to service connection for vertigo and disabilities of the feet, knees and back.  In April 2009 the RO granted entitlement to service connection for lumbar and dorsal strain, and assigned a 20 percent rating.  The Veteran appealed the initial rating assigned for this disability.

In April 2011, the Veteran and his spouse testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.

In September 2011, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), for additional development.  For the reasons stated below, the AMC complied with the Board's remand instructions with regard to the claims being decided herein.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In November 2012, the AMC increased the rating for the lumbar spine disability, recharacterized as lumbar spine DDD, to 40 percent, effective November 29, 2011.  This created a staged rating as indicated on the title page.  The AMC also granted entitlement to service connection for bilateral lower extremity radiculopathy associated with lumbar spine DDD, and assigned separate 10 percent ratings for each extremity.  As these ratings were granted pursuant to the criteria for rating disabilities of the spine, as discussed below, the issues of entitlement to ratings higher than 10 percent for radiculopathy of each lower extremity are before the Board on this appeal as indicated on the title page.

After the RO/AMC issued its most recent, January 2013 supplemental statement of the case (SSOC) and re-certified the appeal to the Board, the Veteran submitted additional evidence.  Significantly, however, earlier in January 2013, the Veteran's representative submitted a form indicating that if additional evidence was submitted, they would waive the Veteran's right to have the case remanded to the agency of original jurisdiction (AOJ) for initial review of this evidence and allow the Board to consider this evidence in the first instance.  The Board interprets this statement as a waiver of initial AOJ review of the documents submitted by the Veteran and will therefore not remand the case to the AOJ for initial review of this evidence.  See 38 C.F.R. § 20.1403(c) (2012) (allowing Board review of evidence without initial AOJ review if this procedural right is waived).

The issues of entitlement to service connection for bilateral knee disability, bilateral foot disability, and vertigo are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC.



FINDINGS OF FACT

1.  Prior to November 29, 2011, the symptoms of the Veteran's lumbar spine DDD did not more nearly approximate flexion limited to 30 degrees or less or ankylosis, and there were no incapacitating episodes.

2.  From November 29, 2011, the symptoms of the Veteran's lumbar spine DDD did not more nearly approximate unfavorable ankylosis of the thoracolumbar or entire spine, and there were no incapacitating episodes.

3.  Symptoms of the Veteran's left and right lower extremity radiculopathy have not more nearly approximated moderate incomplete paralysis of the sciatic nerve at any time during the appeal period.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating higher than 20 percent for lumbar spine DDD prior to November 29, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2012).

2.  The criteria for a rating higher than 40 percent for lumbar spine DDD from November 29, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243.

3.  The criteria for a rating higher than 10 percent for left lower extremity radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8620 (2012).

4.  The criteria for a rating higher than 10 percent for right lower extremity radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8620.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has an obligation to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  These notice requirements of  apply to all five elements of a service connection claim include the following:  1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

With regard to the rating claims being decided herein, as noted above, these claims arise from the Veteran's disagreement with initial 20 percent rating assigned in connection with the grant of service connection for lumbar spine disability.  Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003).  Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under other notice provisions.  See 38 U.S.C.A. §§ 5104, 7105 (West 2002); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary.

VA must also make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records, including additional records obtained pursuant to the Board's September 2011 remand instructions.  The Board also instructed that the Veteran be afforded a VA examination as to the severity of his lumbar spine DDD.  The Veteran was afforded multiple VA examinations with regard to the severity of his lumbar spine DDD and bilateral lower extremity radiculopathy.  As shown by the discussion below, these examinations were adequate because they were based on consideration of the Veteran's prior medical history and also described the disabilities in sufficient detail to allow the Board to make a fully informed evaluation.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  The RO/AMC therefore complied with the Board's remand instructions in this regard.  Stegall, 11 Vet. App. at 271.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the claims being decided herein.  The claims for higher ratings for lumbar spine DDD and bilateral lower extremity radiculopathy are thus ready to be considered on the merits.

Analysis

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found; the ratings may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999).  In this case, the AMC has assigned staged ratings of 20 and 40 percent for the Veteran's lumbar spine DDD.  For the following reasons, the Board finds that this staged rating is appropriate.

The Veteran's lumbar spine DDD is rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS).  All diseases and injuries of the spine other than IVDS, however, are to be evaluated under the general rating formula for diseases and injuries of the spine (general rating formula).  IVDS is to be rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  Note 1 to the Formula for Rating IVDS defines an incapacitating as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Neither the lay nor medical evidence below reflects that there have been incapacitating episodes as defined in the applicable regulation, and this formula therefore does not provide for increased evaluations.  

The Board has considered the application of other diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Under the general rating formula, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent rating is warranted for ankylosis of the entire spine.

In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

The RO identified the November 29, 2011 date of the most recent VA examination as the date that the evidence reflects that the Veteran's symptoms more nearly approximated the criteria for a 40 percent rating under the general rating formula.  The Board agrees.  Prior to that time range of motion did not more nearly approximate forward flexion of 30 degrees or less or ankylosis.  On the July 2008 VA examination, the examiner referred to the dorsal and lumbar spine.  VA regulations now treat the lower and middle sections of the spine as a single unit, the thoracolumbar spine.  See Proposed Rule, Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56509-02 (Sept. 4, 2002) ("We propose that the general rating formula provide criteria for the cervical and thoracolumbar spinal segments only, excluding a separate set of criteria for the thoracic (or dorsal) segment of the spine").  The examiner indicated that range of motion of the dorsal spine was 0 to 60 degrees flexion.  On repetitive motion testing, range of motion testing was not additionally limited by pain, fatigue, weakness, or lack of endurance and the Veteran denied any flare-ups.  There was mild or minimal pain from 50 to 60 degrees with minimal spasm and tenderness but no weakness.  As to the lumbar spine, range of motion was flexion 0 to 90 degrees, lateral flexion 30 degrees bilaterally, rotation 30 degrees bilaterally, and extension 30 degrees.  There was no additional limitation due to pain, fatigue, weakness, or lack of endurance on repetitive motion testing and the Veteran denied any flare-ups as well as any incapacitating episodes.  There was evidence of mild or minimal pain with flexion 80 to 90 degrees, lateral flexion 20 to 30 degrees bilaterally, rotation 20-30 degrees bilaterally, and extension 20-30 degrees, with minimal spasm and tenderness but no weakness.  With regard to both the dorsal and lumbar spine, there was no reference to or indication of ankylosis.  The Veteran complained of severe constant pain.

Similarly, on the September 2009 VA examination, range of motion was 0 to 70 degrees flexion, lateral flexion was to 20 degrees bilaterally, rotation was to 20 degrees bilaterally, and extension was 20 degrees.  Range of motion was not limited by pain, fatigue, weakness, or lack of endurance on repetitive motion testing, there was no additional loss of function of the lumbar spine on physical examination and the Veteran's denied any flare-ups.  There was moderate pain with lumbar flexion 60 to 70 degrees, lateral flexion 10 to 20 degrees bilaterally, rotation 10 to 20 degrees bilaterally, and extension 10 to 20 degrees, with moderate spasms and tenderness but no weakness.  There was no reference to or indication of ankylosis.  The Veteran complained of severe intermittent pain twice daily.

Dr. Rosen's September 2010 treatment note indicated that range of motion was flexion "80 percent," extension 80, right lateral flexion 45, and left lateral flexion 35.  Repeated movement testing of the lumbar spine revealed a directional preference into unloaded lumbar extension.

The above evidence reflects that the Veteran's symptoms did not more nearly approximate flexion to 30 degrees or less or ankylosis either on initial or repetitive range of motion testing, and the Veteran specifically denied flare-ups.  Whether Dr. Rosen's reference to 80 percent means 80 percent of full flexion (72 degrees) or was a mis-transcription of 80 degrees, in either case his findings did not indicate that flexion more nearly approximated the 30 degrees or less required for a 40 percent rating under the general rating formula.  There is thus no basis for a rating higher than 20 percent under the general rating formula prior to November 29, 2011.

In his April 2010 substantive appeal, the Veteran challenged the conclusion of the July 2008 VA examiner that there was painless range of motion of the lumbar spine, writing that "it is a rare occasion when I do not have back pain on movement.  My range is limited in daily activity and if I do happen to bend or lift too much, I feel pain and stiffness for days thereafter."  The Board notes that the examiner did note that there was pain at a certain point during range of motion, but, in any event, the Board accepts the Veteran's competent testimony indicating that he has experienced throughout the appeal period frequent or constant back pain.  However, the fact that the Veteran experienced frequent pain and there was pain during the range of motion testing does not warrant any higher rating, as "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  See also id. at 38 (pain "may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or ] endurance").

In his substantive appeal, the Veteran also challenged the finding of the July 2008 VA examiner that there was no additional loss of function to the lumbar spine upon examination, and contended that even during his examination, he could not move or bend as far as the examiner requested because of the pain and that the examiner told him to stop because of the pain.  The Veteran is competent to state that he could not bend as far as he wanted because of pain but the Board finds that the examination findings of trained health care professionals indicating that there was no additional functional limitation due to pain and the other DeLuca factors resulting in limitation of motion approximating flexion 30 degrees or less prior to November 29, 2011 are of greater probative weight than the Veteran's more general assertion that he had additional functional limitation due to pain. 

On the November 29, 2011 VA examination, however, range of motion was flexion to 10 degrees with pain at 10 degrees, extension to 5 degrees with pain at 5 degrees, right lateral flexion to 10 degrees with pain at 10 degrees, left lateral flexion to 15 degrees with pain at 15 degrees, right rotation to 10 degrees with pain at 10 degrees and left rotation 0 to 15 degrees with pain at 15 degrees.  There was no additional limitation due to pain, fatigue, weakness, or lack of endurance on repetitive motion testing, the Veteran denied flare-ups or incapacitating episodes, and there was no tenderness to palpation or paravertebral spasm or ankylosis of the thoracolumbar spine.  These examination findings warrant a rating of 40 percent from the November 29, 2011 date of the examination, as flexion was less than 30 degrees.  A rating higher than 40 percent is not warranted from November 29, 2011, however, because the evidence did not more nearly approximate unfavorable ankylosis of the thoracolumbar or entire spine.  There was no ankylosis and there was no additional functional limitation on repetitive motion testing or flare-ups.  In any event, where, as here, the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, 38 C.F.R. §§ 4.40, 4.45 and DeLuca are not for application.  See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis).  The private treatment records do not contain any substantially different findings, with December 2011 Good Shepherd Penn Partners Therapy and Fitness records indicating range of motion figures of flexion to 30 degrees, lateral flexion and rotation to 10 degrees bilaterally and extension to 10 degrees.  The Board thus finds that an increased evaluation is not warranted.

The general rating formula requires any objective neurologic abnormalities associated with a spine disability, including bowel or bladder impairment, be evaluated separately under an appropriate diagnostic code38 C.F.R. § 4.71a, General Rating Formula, Note (1).  As noted, the Veteran has been granted entitlement to service connection for bilateral lower extremity peripheral neuropathy with each lower extremity being rated 10 percent under 38 C.F.R. § 4.124a, DC 8620, applicable to neuritis of the sciatic nerve.  Under DC 8620, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function, and that with partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  38 C.F.R. § 4.120, Note.  The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration and that, when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a, Note.

For the following reasons, the Board finds that the evidence reflects that the symptoms of the Veteran's right leg radiculopathy have approximated no more than mild incomplete paralysis at any time during the appeal period, which began when the Veteran filed his claim for entitlement to service connection for back disability in October 2006.  Dr. Schocher's April 2007 treatment note indicated that patellar and Achilles reflexes were 1/4 bilaterally, Babinski test and clonus were negative, superficial reflex and epicritics were intact, bilateral and symmetrical, and there was no history of paresthesias.  On the July 2008 VA examination, the Veteran denied any pain radiation to his lower extremities, and both sensory and motor function examination were normal with relation to the lumbar spine.  Dr. Halpern's August 2008 EMG nerve conduction study contains an impression of no evidence for peripheral neuropathy, with bilateral lumbar polyradiculopathy involving L3, L4, and L5 but without acute changes.

A July 2009 Temple neurology note contained an impression of mild chronic lumbosacral polyradiculopathy documented on EMG, with focal tenderness on the bottom of the left foot.  Dr. Moskowitz's August 2009 treatment note indicated that there was intermittent radiating pain to the lower extremities bilaterally, but there was no lower extremity weakness, numbness or tingling, and no bowel or bladder dysfunction, and motor function was 5/5 bilaterally.  The impression noted leg pain from possible lumbar radiculopathy.  On the September 2009 VA examination, sensory and motor function were both normal as they related to the lumbar spine, and the diagnosis included no evidence of radiculopathy of the lower extremities at the time of examination.  The examiner indicated that neurological examination was unremarkable and normal.

Dr. Rosen's September 2010 treatment note indicated that the Veteran denied lower extremity weakness or bowel or bladder changes, but reported right sided lumbar and buttock pain that radiated centrally up his spine.  Deep tendon reflexes were intact and symmetrical, strength testing of the core and lower extremities showed 4/5 left hamstrings, 4/5 extensor hallucis longus, and 4/5 abdominals and lumbar paraspinals.  There was tenderness and spasm, mild to moderate lumbar hypomobility from L4/5, L5 S1 levels.  There was also a positive slump test with dorsiflexion and a positive right straight leg rise test at approximately 40 degrees and poor postural awareness with sitting activities.

Dr. Gupta's September 2011 letter indicated that the Veteran had intermittent shooting pain down the legs with constant burning pain and numbness in the feet and distal and full control of bowel and bladder.  On examination, straight leg raising could not be done beyond 25 degrees as the Veteran was afraid to elevate his leg because of increased pain, the hips moved well, there was tenderness over the subtrochanteric bursae bilaterally and the ankles were normal. 

On the November 2011 VA examination, muscle strength of the lower motor groups was 5/5 bilaterally, and deep tendon reflexes were +1 of the ankle jerks and knee jerks bilaterally.  Straight leg raising on the left was negative but was positive at 90 degrees on the right.  Pain, temperature, light touch, and pinprick were intact from the knees to the toes bilaterally.  The diagnosis included lumbar radiculopathy.  A December 2011 neurological examination indicated that the Veteran experienced severe, intermittent shooting electrical pain down both legs lasting minutes at a time, rendering him unable to sit for more than 5 minutes at a time.  There was no history of weakness of the legs.  On examination, all major muscle groups had 5/5 power, there was no muscle atrophy, reflexes were 2+ and symmetrical, strength in all major motor groups was 5/5, and sensory examination revealed mild diminished sensation in S1 dermatomal patterns bilaterally.  There were no trophic changes and gait was normal.  The diagnosis was S1 radiculopathy bilaterally, characterized as mild.  There were no other radial groups involved.  The examiner adhered to his opinion in January 2012 after reviewing the claims file.

December 2011 Good Shepherd Penn Partners Therapy and Fitness records indicated that the physician was unable to fully assess lower extremity strength as when resistance was applied the Veteran was fearful and unwilling to perform the test, but it was grossly assessed at 3/5.

The above evidence reflects that there were normal or near normal neurologic findings throughout the appeal period, and the abnormal findings were mild in nature and generally characterized as such by the health care professionals who examined the Veteran.  It therefore cannot be said that the symptoms of either the left or right lower extremity radiculopathy more nearly approximated the moderate incomplete paralysis required for a 20 percent rating.  In his April 2010 substantive appeal, the Veteran challenged the July 2008 VA examiner's conclusion that he did not have lower extremity weakness, numbness, or tingling, and contended that he did in fact have pain, weakness, and stiffness in his feet.  The Board accepts the Veteran's statements that he experiences pain, weakness, and stiffness in his knees and feet, but it is the degree of paralysis caused by his radiculopathy that is at issue in this case, and the above findings reflect that the symptoms most nearly approximate mild incomplete paralysis.  Nothing in the Veteran's statements reflect that his symptoms approximate more than mild incomplete paralysis and, to the extent that they do, the Board finds the specific findings of the trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions.

Extraschedular

Consideration of referral for an extraschedular rating, requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

The Veteran and his wife in their hearing testimony and written statements, as well as in the Veteran's statements made during the Veteran's VA examinations, have indicated that he cannot sit for more than a short time without having to get up because of back and radicular pain, that he experiences a burning sensation in his feet, and that he experienced other symptoms that are not specifically listed in the general rating formula or the criteria applicable to his radiculopathy.  Consequently, the Board finds that the Veteran's lumbar spine DDD symptoms are not fully contemplated by the applicable rating criteria and consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is required.

The Board finds, however, that the send step of this inquiry is not met.  Although the Veteran has received steroid injections for his back, he has not been frequently hospitalized for his lumbar spine DDD or radiculopathy.  The Veteran's symptoms have, however, impacted his ability to work.  During the Board hearing, the Veteran testified that in the past two or three months he had been unable to go to his job as a supervisor for a private environmental service department two or three times due to his back.  In her August 2011 letter and in her hearing testimony, the Veteran's spouse indicated that most of the Veteran's sick and vacation time has been used either for doctor's visits or because he was in to much pain to work, and there were many days when he should not have gone to work.  She estimated that if he had the option, he would now stay home at least two times per week due to pain and discomfort.  She also noted that the Veteran's pain kept him up at night, which makes him exhausted, and his level of physical activity has dramatically decreased, reducing his ability to participate in many activities of daily living.  Dr. Rosen indicated in September 2010 that the Veteran was employed in a job involving heavy machinery usage and periods of prolonged sitting and that his recreational activities included refereeing local high school basketball.  The December 2011 VA examiner indicated that the Veteran's activities of daily living were independent and his work history was intact.

Based on the testimony of the Veteran and his spouse as well as the other evidence, the Board finds that, although the Veteran's disabilities have impacted his employment and caused him to miss work, they have not affected his employment to a degree sufficient to constitute marked interference.  The Veteran indicated that he missed two to three days of work in the past two to three months and his spouse indicated that he would miss work more frequently if circumstances allowed.  Significantly, however, VA regulations provide, that, "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  The Veteran's combined rating of 40 percent prior to November 29, 2011 and 50 percent from that date are ratings that contemplate that the Veteran will miss significant amounts of time for work, and the amount of time from work that the Veteran had actually missed due to his disabilities, approximately one day per month, does not reflect interference beyond that contemplated by such ratings.  The Board therefore finds that there has been neither marked interference with employment, frequent hospitalization, or other factors that render impractical the application of the regular schedular standards in this case.  Referral for consideration of an extraschedular rating for the Veteran's lumbar spine DDD and bilateral lower extremity radiculopathy is therefore not warranted.  38 C.F.R. § 3.321(b)(1).

Conclusion

For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a rating higher than 20 percent for lumbar spine DDD prior to November 29, 2011 or a rating of 40 percent from that date.  Nor have the Veteran's symptoms more nearly approximated the criteria for a rating higher than 10 percent for left or right lower extremity radiculopathy at any time during the appeal period.  The benefit-of-the-doubt doctrine is therefore not for application, and the claims for higher ratings for these disabilities must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Entitlement to an initial rating higher than 20 percent for lumbar spine DDD prior to November 29, 2011 is denied.
 
Entitlement to an initial rating higher than 40 percent for lumbar spine DDD from November 29, 2011 is denied.

Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy is denied.

Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy is denied.


REMAND

Although the Board regrets the additional delay, remand of the service connection claims is necessary to ensure that there is a complete record upon which to decide the Veteran's service connection claims. 

As indicated above, the Veteran served in the Army Reserve before and after his period of active duty service.  One theory of entitlement, raised in particular with regard to service connection for vertigo but also implicated with regard to the other claims, is that the disease was incurred during the period of Reserve service following active duty service.  In its September 2011 remand, the Board, noting that the Veteran's periods of ACDUTRA/INACDUTRA had not been verified, instructed that the AMC attempt to verify the Veteran's duty status for his entire period of Reserve service, to include July 1990 and October 2001, when medical records indicated he experienced right foot pain and vertigo.  The AMC requested records and service verification from the Defense Personnel Records Information Retrieval System (DPRIS) and received some records, but did not obtain any documents indicating the periods of ACDUTRA and INACDUTRA throughout the Veteran's lengthy period of Reserve service.  While the AMC made a formal finding as to the unavailability of the STRs, documenting its efforts and concluding that the STRs were unavailable and further efforts to obtain them would be futile, it did not do so with regard to the Reserve records.

Given the importance of these records to the adjudication of the service connection claims in this case, in particular the need for a document identifying periods of ACDUTRA And INACDUTRA during Reserve service, the Board finds that another remand is warranted to attempt to obtain this information.  In the March 2013 brief, the Veteran's representative indicated that when the Veteran was separated from the Reserve in 2005, he was stationed with the 630th Transport Company in Washington, Pennsylvania, and that the National Personnel Records Center (NPRC) might have information relevant to the Veteran's duty status during his Reserve service.  The Board agrees that a request for information regarding verification of the Veteran's duty status during his Reserve service should be sought from the NPRC, as well as any other federal department or agency that the AMC believes may possess relevant information.  If the information or evidence cannot be obtained, this should be documented in the claims file and the Veteran notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e)(1).

Accordingly, the claims for entitlement to service connection for bilateral knee disability, bilateral foot disability, and vertigo, are REMANDED for the following action:

1.  Request from the NPRC information regarding verification of the Veteran's duty status during his Reserve service.  The Board notes that it is requesting the specific dates of ACDUTRA and INACDUTRA during the Veteran's Reserve service.  The RO/AMC should also request such information from any other federal department or agency that it believes may possess relevant information on this question.

If the information or evidence cannot be obtained, this should be documented in the claims file and the Veteran notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e)(1).

2.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, readjudicate the claims for entitlement to service connection for bilateral knee and foot disabilities and vertigo.  If the claims remain denied, provide a SSOC to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs