Citation Nr: 1325053 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-24 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent prior to July 25, 2011, and in excess of 40 percent thereafter, for degenerative disc disease of the lumbar spine (back disability). 2. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to February 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The January 2006 rating decision continued the 20 percent rating for the Veteran's degenerative disc disease of the lumbar spine. The Veteran was afforded a Travel Board hearing in July 2008. The Veterans Law Judge (VLJ) who presided over the hearing has since left the Board. The Veteran was informed that he could have a new hearing, and he requested one. The Veteran most recently testified at a videoconference hearing before the undersigned VLJ in May 2013. Transcripts of both hearings are associated with the claims file. The Veteran's claim was most recently remanded in June 2011 for additional development. The case has since been returned to the Board for adjudication. In an April 2012 rating decision, the disability rating for degenerative disc disease of the lumbar spine was increased to 40 percent, effective July 25, 2011. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his back disability and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a June 2013 rating decision, the Veteran was separately awarded service connection for radiculopathy of the right lower extremity secondary to his back disability. He was assigned a 10 percent rating for the right lower extremity, effective July 25, 2011. Because radiculopathy of the right lower extremity was awarded during the course of the appeal for the Veteran's back disability, and because consideration of awarding separate evaluations for neurological manifestations of lumbar spine disability is specifically directed under the current rating criteria applicable to the spine, the Board believes that this separate rating is part and parcel of the back claim that has been perfected on appeal and its propriety will be considered in the decision below. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. Prior to June 25, 2011, the Veteran's back disability was manifested by painful motion and limitation of flexion to, at its worst, 50 degrees; and the back disability had not resulted in ankylosis or any incapacitating episodes necessitating bed rest prescribed by a physician. 2. Beginning June 25, 2011, the Veteran's back disability has been manifested by painful motion and limitation of flexion to, at its worst, 30 degrees; and the back disability has not resulted in ankylosis or any incapacitating episodes necessitating bed rest prescribed by a physician. 3. Throughout the entire timeframe on appeal, the Veteran has exhibited symptoms of mild, incomplete paralysis of the right lower extremity. 4. Throughout the entire timeframe on appeal, the Veteran has exhibited symptoms of mild, incomplete paralysis of the left lower extremity. CONCLUSIONS OF LAW 1. Prior to July 25, 2011, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 2. Beginning July 25, 2011, the criteria for an evaluation in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 3. Resolving all doubt in the Veteran's favor, the criteria for separate 10 percent disability rating for incomplete paralysis of the right lower extremity for the entire timeframe on appeal is met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2012). 4. Resolving all doubt in the Veteran's favor, the criteria for separate 10 percent disability rating for incomplete paralysis of the left lower extremity for the entire timeframe on appeal is met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in November 2005, July 2008, and September 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The July 2008 and September 2008 letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board recognizes that the Veteran was not provided notice of how disability ratings and effective dates are determined until after the initial adjudication of this claim. The Board finds, however, that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating, including the specific disability rating percentage the Veteran feels is applicable and warranted. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. All identified private treatment records for his back disability are associated with the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claim for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran appropriate VA examination most recently in July 2011. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the July 2011 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the October 2009 and July 2011 VA examinations and reports (with an August 2011 addendum), and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its September 2008, September 2009, and June 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The general rating formula for disease and injures of the spine, specifically, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides as follows: A 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; A 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; A 40 percent rating for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; A 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine; A 100 percent rating for unfavorable ankylosis of the entire spine. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Factual Background and Analysis By way of background, the Veteran was originally awarded service connection for a herniated lumbar disc in a May 1985 rating decision. He was assigned a 20 percent rating, effective February 26, 1985. He filed his current request for increase in October 2005. In an April 2012 rating decision, his disability rating for his degenerative disc disease of the lumbar spine was increased to 40 percent, effective July 25, 2011. Also, in a June 2013 rating decision, he was separately awarded a 10 percent rating for radiculopathy of the right lower extremity, effective July 25, 2011. Private x-ray of the lumbar spine performed in December 2003 showed moderate to severe degenerative disc disease at L5, mild degenerative disc disease in the rest of his lumbar spine, and facet degenerative arthritis. An x-ray performed in November 2005 showed mild degenerative changes in the lumbar spine, particularly at L5-S1 and in the right sacroiliac joint. Private treatment records, dated in 2004 show treatment for lumbar strain/spondylosis and right sacroiliac dysfunction. He had sought treatment following a work-related injury wherein he fell down some stairs onto his right buttock and low back. Following his October 2005 request for increase, the Veteran was afforded a VA examination of the spine in November 2005. The Veteran reported a history of tenderness, soreness, and pain in the back with increasing stiffness. He advised that he occasional gets a little bit of right leg pain, but it is mainly in the back. He denied the use of any assistive devices, and repetitive use and weather changes aggravate his low back symptoms. He reported using over-the-counter medication for treatment as is able to normally perform his daily activities. Physical examination of the Veteran revealed very mild tenderness and soreness across the lumbar spine. Forward flexion was to 65 degrees with pain at 50 degrees; extension to 23 degrees; lateral flexion was 25 degrees to the left and right; and lateral rotation was to 25 degrees to the left and right. He was able to perform toe and heel raises. There was no sciatic notch tenderness. Straight leg testing and Lasegue's sign were negative. Neurological examination in the bilateral lower extremities is normal as to reflexes, strength, and sensation. Following repetitive testing, the Veteran had increased aching, pain, soreness, and fatigability, without any changes in range of motion and any additional ranges of motion would be based upon speculation. The examiner opined that the Veteran's degenerative disc disease at L5-S1 is related to his initial service injury because it is "at the same level." In a March 2006 private treatment record, the Veteran reported mild radiation of pain into the left leg/thigh. As noted in an April 2006 treatment record, the Veteran was complaining for left leg numbness that had worsened in the past year. Range of motion testing performed at that time showed flexion to 50 degrees and extension to 10 degrees. There was mild tenderness appreciated in the midline lumbar spine. Strength and gait were normal. Sensation was decreased on the left at L4-5. Reflexes in the left and right ankles and knees were 1+ (decreased). He was diagnosed as having lumbar radiculopathy. The Veteran also underwent a MRI in April 2006, at which time he reported stiffness and tingling in both legs, more so on the right. The impression was that the L5-S1 disc was bulging and abutting the S1 nerve root sleeves. In a May 2006 private treatment note, the Veteran reported radiation of pain down the left buttock and tight, and down the whole right leg and hip. In a June 2006 private treatment record, the Veteran reported severe low back pain. At that time, he denied any radiation of pain or numbness in the legs. In a December 2006 letter from the Veteran's treating physician indicating that his back pain has significantly increased over the past year. He further noted that the Veteran complains of numbness, tingling, and burning down both legs with the right more so than the left. The physician indicated that the Veteran has missed numerous days of work over the last year due to his back pain, and he described the back pain as being a "significant impairment." The Veteran contends that his symptoms are exacerbated with changes in weather such as heat, cold, humidity, dampness, as well as repetitive bending or twisting. Additionally, he advised that prolonged periods of standing, sitting, driving, or being on his feet affects his back. He contended that his back disability caused him to lose approximately 3 weeks of work per year from 2003-2007. During his July 2008 hearing, he testified to radiation of pain with numbness and tingling down both legs. He indicated that he avoids stairs, ladders, and deep water due to his back disability. The Veteran was afforded another VA examination in February 2009, during which he reported persistent back pain. He advised that in the past 4 to 5 years, his symptoms have progressively worsened with increasing soreness and tenderness. He endorsed some limited endurance, and repetitive bending and prolonged standing aggravates it. The Veteran further endorsed some leg pain, and on the day of the examination he had increasing right leg pain. He reported that he is able to perform his normal duties at the post office. Range of motion testing revealed forward flexion of the lumbar spine from 0 to 50 degrees; extension from 0 to 25 degrees; and right and left lateral flexion and rotation to 25 degrees in all directions. The Veteran endorsed pain and flare-ups upon repetitive use, but there was no range of motion change appreciated by the examiner. The examiner indicated that the Veteran had painful motion and some spasm and tenderness across the lumbar spine, but no incapacitation in the past year. Sensorimotor examination and straight leg testing was positive on the right leg with back and leg pain. The examiner noted some diminished sensation in the lateral aspect of the right leg compared to the left side. Strength and reflexes are equal in both lower extremities. The post-operative degenerative disc disease of the lumbar spine diagnosis was continued. Following the Board's September 2009 remand, the Veteran was afforded another VA examination of the spine in October 2009. During this examination, the Veteran reported similar symptoms as in the previous examination. He described experiencing weakness, stiffness, fatigue (at the end of the day), and lack of endurance related to work. He described this pain and chronic dull achiness, sometimes with stiffness and/or muscle spasm, and radiation of pain into the right and left buttocks on occasion. He endorsed lumbar pain in the L4-5 area with occasional radiation. He denied any bowel/bladder incontinence or use of any assistive devices. The Veteran continues to work as a postal carrier and described his low back disability as impacting his usual occupation inasmuch as 50 percent of his day includes prolonged walking, standing, repetitive squatting, and twisting movements, all of which aggravate his back. Physical examination revealed normal lordotic curvature without scoliosis and a well-healed surgical scar. He endorsed some tightness without spasms, but no weakness. Forward flexion of the lumbar spine was from 0 to 20 degrees without pain, and 20 to 40 degrees with pain; backward extension from 0 to 10 degrees with pain throughout the range of motion; lateral flexion on the left and right from 0 to 10 degrees without pain, and 10 to 20 degrees with pain; and lateral rotation on the left and right from 0 to 10 degrees without pain, and 10 to 20 degrees with pain. The Veteran had no sciatic notch tenderness. The examiner indicated that after repetitive testing, there were no changes in ranges of motion. There was no increase in pain, weakness, fatigability, and incoordination, but there was some fatigue noted. Again, the examiner noted, the Veteran's ranges of motion stayed the same. The Veteran denied periods of flare-ups as his back pain is chronic in nature. Neurological examination revealed negative straight leg testing, and deep tending reflexes were 1/2, bilaterally. Muscle strength and tone in the lower extremities was within normal limits. The examiner found no evidence of sensory or motor deficits in the lower extremities. Additionally, the Veteran did not have any periods of doctor-prescribed bed rest in the past 12 months. The examiner continued the Veteran's diagnosis of degenerative disc disease of the lumbosacral spine. The Veteran was afforded yet another VA examination in July 2011, during which he reported similar symptoms as in his previous examinations. He described more difficulty, limited endurance, and easy fatigability due to his low back symptoms. He endorsed bilateral leg pain, worse on the left then right, with some numbness, tingling, and paresthesias. He denied use of assistive devices. The Veteran continues to work at the post office with a half driving, half walking route, but has difficulty with it. He reported missing some time from work due to his back disability. Range of motion testing revealed flexion from 0 to 30 degrees and extension from 0 to 15 degrees. Left and right lateral rotation and flexion were from 0 to 15 degrees in all directions. The examiner found no additional change in pain or range of motion, and indicated that he could not really perform repetitive testing because of severe limitation of motion in the back. The examiner noted that the Veteran has flare-ups and any attempt at heavy lifting or bending causes these flare-ups that result in him taking off from work. The examiner appreciated painful motion and tenderness throughout the Veteran's lumbar spine. Sensorimotor examination revealed positive straight leg testing on the right, and limited, decrease sensation in the L5 distribution of his right leg. Reflexes and strength are equal and there are no periods of incapacitation. The examiner indicated that the Veteran has mild to moderate radiculopathy in his right leg as a result of his back disability. He further indicated that although the Veteran is working, he is missing a lot of work, and would have difficulty performing any heavy or repetitive bending or lifting. In an August 2011 notation, the examiner indicated that he reviewed the Veteran's claims file. There was no additional comment provided. During the Veteran's May 2013 hearing, he testified that his back disability has progressively worsened, and that attempts at treatment have not been very successful. He reported that he must wake up a few hours before he goes to work to "loosen up." He further described his right lower extremity having a stinging sensation from his back all the way down to his foot. He indicated that he only works and is unable to participate in activities he once enjoyed due to his back disability. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent prior to July 25, 2011, and in excess of 40 percent thereafter for his degenerative disc disease of the lumbar spine. Prior to July 25, 2011, the Veteran's forward flexion of the thoracolumbar spine has been no worse than 50 degrees, with pain. During the Veteran's July 25, 2011, VA examination, he was first shown to have flexion limited to 30 degrees. Further, at no time during the period on appeal has the Veteran had ankylosis (favorable or unfavorable) of the entire thoracolumbar spine, nor has he had any periods of doctor prescribed bed rest due to his back disability. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc syndrome. However, there is no evidence showing that bed rest has been prescribed by a physician. As such, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation for the periods considered. As such, the Board finds that the currently assigned evaluations are appropriate for the Veteran's back disability. The Board finds all reasonable doubt in the Veteran's favor and awards a 10 percent rating for radiculopathy for each lower extremity for the entire timeframe on appeal. Throughout the timeframe on appeal, the Veteran has reported radiation of pain, numbness, and tingling in his bilateral lower extremities. Sometimes these symptoms were more pronounced in his left lower extremity, and sometimes they were more pronounced in the right as evidenced in his private treatment records. Even the July 2011 VA examination notes that the Veteran has numbness, tingling, and paresthesias in both lower extremities, worse on the right than left. The Board further notes that Veteran did not limit his May 2012 claim to radiculopathy of the right lower extremity. Indeed, the Veteran had a post-service, work-related injury to the right hip/buttock/low back area in 2004. Nevertheless, given the consistent reports of numbness and radiating pain in the bilateral lower extremities, the Board finds all reasonable doubt in the Veteran's favor and a separate 10 percent disability rating is warranted for each lower extremity for mild, incomplete paralysis of the sciatic nerve. The Board notes, however, that there is no indication during the period on appeal that the incomplete paralysis of the bilateral lower extremities is any more than mild in nature. Throughout the timeframe on appeal, sensory examinations were sometimes noted as normal, and at other times, there was decreased sensation in one lower extremity or the other. In general, the Veteran's motor examinations have revealed normal tone and strength in the bilateral lower extremities, with intermittent findings of decreased deep tendon reflexes. Although the Veteran is competent to describe radiating pain down to his knees and sometimes into his feet, the consistent lack of significant objective findings weighs against granting a separate rating in excess of 10 percent for either lower extremity. In other words, his radiculopathy symptoms are no more than mild in nature in each lower extremity. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a disability rating in excess of 20 percent prior to July 25, 2011, and in excess of 40 percent thereafter for his back disability; but in favor of a separate 10 percent disability rating for associated mild, incomplete paralysis of the sciatic nerve in each lower extremity. However, the preponderance of the evidence is against a disability rating in excess of 10 percent for each lower extremity. Additional Considerations The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran has not contended that he is unemployable due to his service-connected degenerative disc disease of the lumbar spine with radiculopathy. In fact, he is currently employed with the U.S. Postal Service. Accordingly, the Board concludes that the issue of entitlement to TDIU is not presently before the Board. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected lumbar spine disability with radiculopathy are inadequate. A comparison between the level of severity and symptomatology of the Veteran's lumbar spine disability with radiculopathy of the lower extremities and the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports chronic back pain, difficulty with repetitive bending and prolonged standing, and numbness, tingling, and pain into the right lower extremity. As discussed above, the current ratings assigned are adequate to fully compensate the Veteran for his pain, limited motion, right radiculopathy, and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A rating in excess of 20 percent prior to July 25, 2011, and in excess of 40 percent thereafter, for degenerative disc disease of the lumbar spine is denied. For the entire timeframe on appeal, a 10 percent rating for radiculopathy of the right lower extremity is granted. For the entire timeframe on appeal, a 10 percent rating for radiculopathy of the left lower extremity is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs