Citation Nr: 1323941 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-24 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for right hip degenerative joint disease (DJD/arthritis). 2. Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.N. (brother) ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to July 1957. This appeal to the Board of Veterans' Appeals (Board) is from August 2007 and July 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, that granted service connection and assigned respective 10 percent initial ratings for right hip DJD and right lower extremity radiculopathy, both retroactively effective from August 2, 2006. The Veteran appealed for higher initial ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran and his brother testified at a hearing at the RO in July 2011, before the undersigned. A transcript of the hearing is associated with the record. In November 2011 and September 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development and consideration. In May 2013, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the claims and returned the file to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Resolving any doubt in the Veteran's favor, for the period from August 2, 2006 until June 17, 2008, the Veteran's right hip DJD demonstrated limitation of abduction with motion lost beyond 10 degrees, when considering pain on motion. 2. From June 18, 2008 to the present, the evidence of record demonstrates that the Veteran's right hip DJD has no limitation of motion to 30 degrees or less flexion (flexion not limited beyond 50 degrees) and no limitation of abduction beyond 10 degrees (abduction shown to 25 degrees), including consideration of the Veteran's complaints of pain and stiffness on motion, and upon repetitive motion testing. There is no right hip ankylosis. 3. The evidence of record demonstrates that the Veteran's right lower extremity radiculopathy does not manifest more than incomplete (not complete) paralysis, of no more than a mild nature (not moderate or severe). CONCLUSIONS OF LAW 1. For the time period from August 2, 2006 until June 17, 2008, the criteria are met for an initial rating of 20 percent, but no greater, for right hip DJD. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5250, 5252, 5253 (2012). 2. Since June 18, 2008, the criteria are not met for an initial rating higher than 10 percent for the Veteran's right hip DJD. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5250, 5252, 5253 (2012). 3. The criteria are not met for an initial rating higher than 10 percent for the Veteran's right lower extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.7, 4.10, 4.124a, DC 8524 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of the issues decided below (higher initial ratings for right hip DJD and right lower extremity radiculopathy), the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 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). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. With respect to the Veteran's initial rating claims list on the title page, the Board notes that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (Dec. 22, 2003); 38 C.F.R. § 3.159(b)(3)(i). Because service connection for the above disabilities has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to higher initial evaluations for these disabilities are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (noting that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Relevant to the duty to assist, the Board finds that all necessary development as to the issues addressed in this decision has been accomplished, and that appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records, post-service VA treatment records, and private treatment records have been obtained and considered. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any additional, outstanding records that have not been requested or obtained that are pertinent to the claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims. Rather, in the Veteran's June 2013 Informal Hearing Presentation, the Veteran's representative asserted that because the Veteran is terminally ill, he requests the AMC to adjudicate his claims on the evidence of record. Specific VA medical examinations were obtained in July 2007, June 2008 and August 2009 to assess the severity of his right hip DJD and right lower extremity radiculopathy. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. See Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a) (2012). Because of the Veteran's contentions that his disabilities had worsened, the Board's September 2012 remand directed the AMC to arrange for reexamination of the Veteran's right hip DJD and right lower extremity radiculopathy. Initially, the Veteran delayed reporting to another VA examination at the Tomah, Wisconsin VA Medical Center, instead informing VA that inadequate heating at his Wisconsin home required him to temporarily take shelter at his son's home in Texas through April 2013. Later, in a May 2013 Report of Contact, the Veteran informed the AMC that he could not report to any future VA examination because he was suffering from terminal cancer. See also June 2013 Informal Hearing Presentation. The Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned in July 2011. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Here, during the July 2011 Board hearing, undersigned identified the issues on appeal as including claims for higher initial ratings for the right hip DJD and right lower extremity radiculopathy. Not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. Id. at 497. Moreover, partly on the basis of the hearing discussion, the undersigned remanded these claims in November 2011 for the AMC to obtain outstanding treatment records from VA and private providers. Following the November 2011 remand, the AMC obtained VA outpatient treatment records from the Milwaukee VA Medical Center (VAMC), dated from November 2011 through July 2012; and associated an electronic copy of these records with the Virtual VA system. The Board again remanded these claims in September 2012 for the AMC to obtain any outstanding treatment records dated after July 2012. However, the Veteran's October 2012 statement specifically denied the existence of any post-July 2012 treatment records that are relevant to his claims. Although the record contains VA treatment records dated after July 2012 through April 2013, at the Milwaukee VAMC, these do not appear relevant to the claim and appear to have been reviewed by the RO in its May 2013 supplemental statement of the case (SSOC). Moreover, although the Board's September 2012 remand also directed the AMC to arrange for reexamination of the Veteran's right hip DJD and right lower extremity radiculopathy, thereafter, the Veteran indicated in a May 2013 Report of Contact that he cannot report to another VA examination because he has terminal cancer. See also June 2013 Informal Hearing Presentation. Hence, there was compliance with the prior Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268, 271 (1998), violation when the examiner made the ultimate determination required by the Board's remand). The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Analysis The Veteran contends that his right hip DJD and right lower extremity radiculopathy, respectively, are more disabling than reflected by their 10 percent evaluations. As background, the Veteran's service treatment records show he suffered an orthopedic injury, including to his back and right leg, when he fell off a military amphibious tractor/tank in January 1956. He thereafter had complaints of right leg and hip pain, and difficulty extending and straightening the right leg. Post-service, he reports that he worked in a lumber yard from 1957 until retirement in 1998, due to age. See July 2007 VA examination report. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is reviewed when making a disability determination, but past medical reports do not have precedence over current medical findings. 38 C.F.R. § 4.1. In Fenderson v. West, 12 Vet. App. 119, 125-126 (1999), the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected. In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Fenderson, 12 Vet. App. 125-126. A. Right Hip DJD The Veteran's right hip DJD has been assigned an initial rating of 10 percent, since service-connection was established, effective August 2, 2006, analogously rated under DCs 5003-5252. Concerning this pelvic disability, his specific diagnoses are not listed in the Rating Schedule. DC 5003 is the code for degenerative arthritis, as is applicable in the Veteran's case, as right hip DJD has been confirmed by X-ray testing in a July 2007 VA examination report. 38 C.F.R. § 4.59. However, the RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (recognizing that a disability rated under an analogous rating code will not show all objective criteria of the analogous rating). Because the evidence of record demonstrates limitation of motion due to arthritic pain and stiffness, the Board will analyze whether a disability rating greater than 10 percent may be awarded under DCs 5252 (limitation of flexion of thigh) and 5253 (impairment of the thigh, contemplating limitation of adduction). Importantly, the Board has considered all potentially applicable diagnostic codes that rate his pelvic disability, to determine whether diagnostic codes other than those referenced immediately above may be more appropriate or more advantageous to the Veteran in this case. The Board finds that Diagnostic Code 5250 (ankylosis of the hip), which allows for disability ratings of 60, 70 and 90 percent, is not for application in this case. That is, the medical evidence of record clearly shows that the Veteran's right hip is not ankylosed at any level. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH 68 (4th ed. 1987)]. Although the Veteran's right hip disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. Indeed, the June 2008 VA examiner specifically found that there is no ankylosis of the right hip joint. See June 2008 VA joints examination report. Diagnostic Code 5251 (limitation of extension of the thigh) is not for application here, because the maximum assignable disability rating available under that code is 10 percent, which the Veteran has continuously received since service-connection was established in August 2006. For different reasons, Diagnostic Codes 5254 (hip, flail joint) and 5255 (impairment of the femur) are also not for application in this case. The medical evidence of record shows that the Veteran does not have flail joint, and that fracture of the shaft or anatomical neck of the femur with nonunion, fracture of the surgical neck of femur with false joint, or malunion or nonunion of the femur does not exist. Thus, the Board concludes that Diagnostic Codes 5252 and 5253 are the most appropriate for rating the Veteran's right hip DJD. Under DC 5252, a 20 percent rating is warranted for limitation of flexion of the thigh to 30 degrees, a 30 percent rating for limitation of flexion to 20 degrees, and a 40 percent rating for limitation of flexion to 10 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253, a 20 percent rating is warranted for impairment of the thigh: limitation of abduction of, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Normal hip flexion is from zero to 125 degrees, and normal hip abduction is from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Board adds that when evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the relevant rating criteria. The diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). i. August 2, 2006 to June 17, 2008 Turning to the evidence of record for this time period, a review of his VA outpatient treatment records, dated from October 2006 through May 2008, reveals that he had recurrent complaints of chronic right hip and right lower extremity pain, controlled by medications and/or treatment. A May 2008 VA treatment record specifically noted decreased flexion and abduction of the right hip, albeit without specific findings on range of motion. The Veteran initially appeared for a VA general medical examination of his right hip in July 2007. The examiner noted the following range of motion for the Veteran's right hip: flexion limited to 90 degrees, extension limited to 10 degrees, abduction limited to 15 degrees, adduction limited to 15 degrees, internal rotation limited to 5 degrees, and external rotation limited to 40 degrees. The examiner stated "no DeLuca" concerning the right hip range of motion. However, the examiner also commented, "of importance is the medium firm endpoint of right hip capsule...not boney but endpoint is definitely painful at last 5 degrees." Thus, the Board finds that the findings of range of motion listed above are additionally limited by at least 5 degrees of motion, such that the Veteran's right hip flexion was limited to 85 degrees and abduction at least limited to 10 degrees, when pain on motion was considered. Resolving any doubt in the Veteran's favor and in the absence of any contravening evidence during this period, the Veteran warrants a higher initial rating of 20 percent under DC 5253. 38 C.F.R. §§ 4.3, 4.7. In light of the July 2007 examination findings, the Board finds that there is limitation of abduction of the right thigh with motion lost beyond 10 degrees, when arthritic pain is considered. Thus, a staged rating of 20 percent is assigned under DC 5253 for the time period from August 2, 2006 (the date service-connection was established) until the next VA examination report (June 18, 2008). During the initial period, it is clear that the Veteran had not exhibited limitation of motion of the right hip to 30 degrees of flexion, even with consideration of pain on motion, thus precluding a higher rating under DC 5252. Moreover, the Veteran also had not exhibited limitation of motion of the right hip to 20 or 10 degrees for the assignment of even higher 30 or 40 percent ratings under Diagnostic Code 5252. ii. June 18, 2008 to Present At the Veteran's VA examination on June 18, 2008, he reported that he was limited in his ability to stand to only 15-30 minutes, and in his ability to walk to a distance of a quarter mile to a mile. He reported pain in the right hip and buttock; weakness in the right side and stiffness in the right hip. He also reported moderate flare-ups of pain in his right hip caused by his DJD, every 1-2 months, with duration of 1-2 days. However, he denied having other right hip joint symptoms of deformity, giving way, instability, dislocation/subluxation, locking episodes, and effusion. The June 2008 VA examiner noted the following range of motion for the Veteran's right hip: flexion limited to 75 degrees, extension limited to 10 degrees, abduction limited to 25 degrees, adduction limited to 20 degrees, internal rotation limited to 10 degrees, and external rotation limited to 25 degrees. The examiner noted pain at 10 degrees straight leg raise on the right, and pain on all passive movements of right leg. However, there was no indication by the examiner that the Veteran's pain, stiffness and weakness were productive of any limitation of right hip motion. The examiner also noted that there was no additional limitation of motion on repetitive movements of the right hip. Subsequent to the examination, in a June 2008 statement, the Veteran clarified that must use a "staff" or similar device to help steady him as he walks for stability when he walks. Next, at an August 2009 VA examination he reported that he was limited in his ability to stand to an hour, and limited in his ability to walk a distance of quarter mile to a mile. He again reported stiffness in the right hip joint, but at this examination he denied having right hip pain and weakness that he had reported at the previous examination in July 2007. Also, he denied having still other right hip joint symptoms of instability, giving way, incoordination, dislocation/subluxation, locking episodes, effusion and inflammation. Nonetheless, he did report moderate flare-ups of pain in his right hip caused by his DJD, every 1-2 months, with duration of hours; and these flare-ups are precipitated by weather, prolonged standing or walking. Rest, heat and medications were the alleviating factors. The August 2009 VA examiner noted the following range of motion for the Veteran's right hip: flexion (knee flexed) limited to 100 degrees, flexion (knee straight) limited to 50 degrees, extension limited to 15 degrees, abduction limited to 35 degrees, adduction limited to 20 degrees, internal rotation limited to 20 degrees, and external rotation limited to 35 degrees. There was no indication by the examiner that there was any additional limitation of right hip motion due to DeLuca factors such as pain, stiffness and weakness. The examiner specifically noted "NO DELUCA x3." Also, the Veteran was noted as able to cross his legs, and can toe-out more than 15 degrees. The Board has also considered the Veteran's VA outpatient treatment records during this time period, and acknowledges his treatment for recurrent complaints of right hip pain that has been controlled with medications for pain and/or treatment. However, his VA treatment records do not also show any decreased ranges of motion in flexion or abduction of such severity to warrant the assignment of a 20 percent rating. At a May 2010 treatment session, the Veteran complained of gradually progressive pain, which he treats with Motrin, and he uses a cane to ambulate. Although a May 2010 VA outpatient treatment record noted decreased flexion, abduction and extension of the right hip, the treating physician did not provide specific range-of-motion findings for the right hip. Lower extremities showed no edema. Subsequent VA treatment records, dated through July 2012, also do not show specific range-of-motion findings for the right hip. Applying these criteria to the facts of this case for this later time period, the Board finds no basis to assign a disability rating higher than 10 percent for the Veteran's right hip DJD. In this regard, the June 2008 VA examiner found flexion of his thigh limited to 75 degrees and abduction limited to 25 degrees, with no additional limitation due to pain, stiffness or weakness on motion or on repetitive motion. Similarly, the August 2009 VA examiner found flexion of his thigh limited to at most 50 degrees and abduction limited to 35 degrees, with no additional limitation due to pain, stiffness or weakness on motion or on repetitive motion. Based on the above identified ranges of motion, the Veteran has not exhibited limitation of motion of the right hip to 30 degrees of flexion or that there was abduction motion lost beyond 10 degrees at any time during the period under review for the assignment of a 20 percent disability rating under DCs 5252 or 5253, respectively. He also has not exhibited limitation of motion of the right hip to 20 or 10 degrees for the assignment of 30 or 40 percent ratings under DC 5252. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding of DeLuca. However, an increased evaluation for the Veteran's right hip disability is not warranted on the basis of functional loss due to pain, stiffness or weakness in this case from June 18, 2008, as the Veteran's symptoms do not exhibit pathology consistent with a still higher 20 percent rating under either Diagnostic Codes 5252 or 5253. In this regard, the Board observes that the Veteran has complained of right hip pain, stiffness, weakness and instability to VA examiners and VA treating providers, on numerous occasions throughout the appeal period. The Board finds the Veteran's descriptions of his own hip symptomatology both competent and credible, but it is outweighed by the medical evidence noted above, to include pertinent VA examinations. Nevertheless, as shown above, each of the range of motion measurements of record demonstrate that the Veteran is able to regularly achieve at the very least 50 degrees of hip flexion, and 25 degrees of abduction with or without pain, which well exceeds the maximum range of 30 degrees of flexion and 10 degrees of abduction needed for a 20 percent rating under Diagnostic Codes 5252 and 5253. While it is clear that the Veteran experiences some functional loss due to his right hip pain, stiffness and weakness, such loss does not approximate the criteria contemplated by the assignment of a higher disability rating (i.e., 20 percent or greater) under 38 C.F.R. §§ 4.40, 4.45 and 4.49. In sum, the evidence of record does not demonstrate that the overall disability picture exhibited by the Veteran's service-connected right hip DJD is more nearly approximated by a disability rating higher than 10 percent at any time during the period under review, from June 18, 2008 (date of VA examination report) to the present day. 38 C.F.R. §§ 4.3, 4.7. The Board finds that the assignment of an initial rating greater than 10 percent is not warranted on a schedular basis, and staged ratings are not for application during this period. As the preponderance of the evidence is against the Veteran's claim for an initial rating higher than 10 percent for right hip disability, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 B. Right Lower Extremity Radiculopathy The Veteran's right lower extremity radiculopathy, which was claimed as a right leg condition by the Veteran, has been assigned a 10 percent rating under 38 C.F.R. § 4.124a, DC 8524 (paralysis of internal popliteal nerve (tibial)), effective from August 2, 2006, the date service-connection was established. The most appropriate diagnostic code for the Veteran's neurological manifestations of the right lower extremity, especially since medical findings of record found impairment of the right tibial nerve. See Butts, 5 Vet. App. at 532; see also June 2008 VA examination report. Under DC 8524, pertaining to paralysis of the internal popliteal nerve (tibial): mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; severe incomplete paralysis warrants a 30 percent disability rating; and complete paralysis, with plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished, no muscle in sole can move, in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost, warrants the maximum 40 percent rating. 38 C.F.R. § 4.124a, DC 8524 (2012). A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis" where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As discussed below, the Board finds the evidence of record does not more nearly approximate an initial rating higher than 10 percent for the right lower extremity radiculopathy. See 38 C.F.R. § 4.124a, DC 8524; see also 38 C.F.R. §§ 4.2, 4.3, 4.6, 4.7. The Veteran submitted statements from friends and a former employer indicating that he walked with a limp and had problems with his right leg after his return from military service. A statement from his treating physician, Dr. T.S., dated in September 2007, also noted problems with his low back, hip and leg pain from in-service injury caused him to walk with a limp since service. At the Veteran's July 2007 VA peripheral nerves examination, he complained that the right leg would not stretch all the way out and he cannot sit with his legs extended for a long time. He had no history of back or hip surgery, and rather, primarily had chiropractic care, last seen in 2002. He reported that the worst things to trigger the pain are if he takes too big a step, then it aches worse in the lateral hip region and the right SI (sacroiliac) joint region. He had no distal leg numbness, tingling or sciatica. He also reports a dull ache during the daytime, but is "mostly OK" at nighttimes. The examiner noted that the area of his pain is the right lateral greater trochanter and right SI joint; he has only a small of pain over the central left spine, no gluteal or other radiation, such that it is more of a tightness and ache. Nerve testing in the tibial nerve (gastrocnemius, soleus muscles) by the examiner showed he tested 5/5 (active movement against full resistance) on the right side, for ankle plantar flexion (S1, S2). He had normal muscle tone with no atrophy. Sensory examination in the lower extremities was unremarkable for vibration, pain, light touch, and position sense testing. Reflex exam showed normal ankle jerk (S1) and normal right side plantar flexion. At the Veteran's June 2008 VA examination, he reported that pain is in the right buttock, upper lateral thigh and now extending almost to the knee (lateral aspect of thigh). He reported climbing stairs one step at a time, using the left leg. He endorsed intermittent numbness and tingling in the same area as pain, better now with ibuprofen treatment; but did not report sensory loss. Specifically, his reported peripheral nerve symptoms were weakness, stiffness, numbness and pain. Objective testing showed muscle strength of 4/5 in the lower gastrocnemius, such that the Veteran was unable to rise on tip toe of the right foot. The examiner found the affected nerve was the tibial nerve. The examiner further found a localized area of decreased light touch and pain perception in the upper posterior-lateral aspect of the right thigh, affecting the posterior femoral cutaneous nerve (S-1 nerve root). The examiner also found his peripheral nerve problem was productive of a short stride with the right leg, and right ankle reflex absent with reinforcement. However, he had normal reflexes on testing of the right knee, right ankle and right plantar flexion. He had no muscle atrophy, no abnormal muscle tone, and no tremors. The June 2008 VA examiner diagnosed the Veteran with herniated nucleus pulposus with right S-1 radiculopathy, to account for his right leg radiculopathy. Neuritis and neuralgia were present. Importantly, though, the examiner found that there was no paralysis due to the nerve dysfunction. At his most recent VA examination, in August 2009, the Veteran continued to present with right-sided stiffness, in the area of the lower back and both hips. Motor examination showed the right leg had good color, good range of motion, full and equal strength of 5/5, but was not as quick standing on his toes compared to the left. Reflex examination was unremarkable, and he had no muscle atrophy, no abnormal muscle tone, no tremors, and no function of any joint affected by the nerve disorder. Gait and balance were normal. His sensory function report showed good color with normal vibration, pain/pinprick, position sense, dysesthesias/paresthesias. However, his sensory functions were also diminished and showed a slight decrease in light touch of the right upper posteriolateral thigh but normal inferior to this. Importantly, the examiner characterized the Veteran's nerve disability as "mild [italicized for emphasis] right radiculopathy" in diagnosing his condition. As on previous examination, there was a finding that paralysis was absent. Also absent were neuritis and neuralgia. The examiner opined that the Veteran has good to very good coordination and ambulation with minimal functional impairment. The examiner noted that the Veteran has been and is still very active. The Board has also considered the Veteran's VA outpatient treatment records during the entire period of the appeal, and acknowledges his treatment for recurrent complaints of right leg pain. On review of the evidence, the Board finds that the Veteran has demonstrated right lower extremity radiculopathy, of at most a wholly sensory nature. This provides evidence suggestive of "mild" incomplete paralysis of the tibial nerve, which warrants no more than a 10 percent initial rating in the right lower extremity under DC 8524. See 38 C.F.R. §§ 4.7, 4.124a. Absent neurological testing evidence indicating a moderate or even more severe level of peripheral neuropathy, there is simply no basis to award an even higher initial rating. In this regard, the VA examination findings indicated only a "mild" level of nerve dysfunction, but no worse. Indeed, the August 2009 examiner specifically characterized the radiculopathy of the right lower extremity as "mild." The June 2008 and August 2009 examiners both found paralysis was absent, precluding the possibility of a complete paralysis of the tibial nerve, as is required for the highest 40 percent rating. The Board also emphasizes that in addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim. He is competent, as a layman, to report on that as to which he has personal knowledge, such as the existence of stiffness and pain in his right leg. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). On the other hand, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his radiculopathy, which requires both specialized medical knowledge of nerve dysfunction, which he has not asserted, and testing of neurological manifestations, such as sensory deficit testing performed by the VA examiners. Medical expertise and neurological testing is required to competently comment on the appropriate characterization for the severity of his radiculopathy, such as whether the level of paralysis of the tibial (internal popliteal) nerve in his right lower extremity was complete or incomplete, and if incomplete, whether mild, moderate or severe in nature. As such, the Board fins the Veteran's competent and credible lay statements regarding pain, stiffness, and other observable symptoms of the right leg to be outweighed by the medical evidence of record, to include the VA examination reports discussed in detail above. Since the Veteran's radiculopathy of the right lower extremity has never been more than 10 percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. As the preponderance of the evidence is against the Veteran's claim for an initial rating higher than 10 percent for radiculopathy of the right lower extremity, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Extra-Schedular Consideration Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. 38 C.F.R. § 3.321(b)(1); see Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria discussed above. The Veteran's service-connected right hip DJD was applied to the applicable rating criteria, which contemplate the type of arthritic pain, stiffness and limitation of motion that are contemplated by the rating criteria for thigh disabilities, as analogous to hip disabilities. Similarly, the Veteran's radiculopathy of the right lower extremity was applied to the applicable rating criteria, which specifically contemplate pain, stiffness and other neurological manifestations of his extremities, apparently as associated with his service-connected lumbar spine disability (chronic lumbar strain with DJD), as in the current case. Although the diagnostic codes in this case allow for higher ratings, the Board fully explained why the higher ratings were not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors. As such, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER For the time period from August 2, 2006 until June 17, 2008, a higher 20 percent rating for the right hip DJD is granted, subject to the laws and regulations governing the payment of VA compensation. Since June 18, 2008, the claim for a rating higher than 10 percent for right hip DJD is denied. The claim for an initial rating higher than 10 percent for right lower extremity radiculopathy is denied. ____________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs