Citation Nr: 1325074 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 97-06 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for lumbosacral strain and scoliosis. 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE) radiculopathy of the sciatic nerve. 3. Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) radiculopathy of the sciatic nerve. 4. Entitlement to an effective date earlier than May 19, 2011, for the grant of a separate 20 percent disability rating for LLE radiculopathy of the sciatic nerve. 5. Entitlement to an effective date earlier than May 19, 2011 for the grant of a separate 10 percent for RLE radiculopathy of the sciatic nerve. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to May 19, 2011. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from April 1960 to January 1965. This appeal to the Board of Veterans Appeals (Board) arises from an October 1996 rating action that granted service connection for a low back disability and assigned an initial 40% rating from January 1990. This appeal also comes to the Board from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that granted a separate 20 percent rating for LLE radiculopathy of the sciatic nerve and a separate 10 percent rating for RLE radiculopathy of the sciatic nerve, effective May 19, 2011. In addition, the RO granted a TDIU, effective from May 19, 2011; the matter of entitlement to a TDIU for the period prior to May 19, 2011, remains for appellate consideration. In February 1997 and April 1999, the Veteran testified at hearings before hearing officers at the RO. In June 1999, the Veteran at the RO testified at a Board videoconference hearing before the undersigned Veterans Law Judge in Washington, D.C. By decisions of February 2000 and February 2005, the Board remanded this case to the RO for further development of the evidence and for due process development. By decision of December 2007, the Board denied an initial rating in excess of 40% for lumbosacral strain with scoliosis and radiculopathy. The Veteran appealed the denial to the Court. By April 2009 Order, the Court vacated that portion of the Board's December 2007 decision that denied an initial rating in excess of 40% for lumbosacral strain with scoliosis and radiculopathy, and remanded the matter to the Board for compliance with instructions contained in a March 2009 Joint Motion for Partial Remand of the appellant and the VA Secretary. By decision of September 2009, the Board again denied an initial rating in excess of 40% for lumbosacral strain with scoliosis and radiculopathy. The Veteran again appealed the denial to the Court. By April 2010 Order, the Court vacated the Board's September 2009 decision, and remanded the matter to the Board for compliance with instructions contained in an April 2010 Joint Motion for Vacatur and Remand of the appellant and the VA Secretary. In September 2010 and again in August 2011, the Board remanded this case to the RO for further development of the evidence and for due process development In an August 2012 rating decision, the RO granted separate 20 percent and 10 percent ratings for left and right lower extremity radiculopathy, respectively, effective May 19, 2011, and entitlement to a TDIU, effective May 19, 2011. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran has argued that he is not able to maintain employment due to his service-connected disabilities. The Board notes that although the August 2012 rating decision granted the Veteran's claim for TDIU, effective May 19, 2011, this award did not encompass the entire appellate period for the instant claim. In light of Rice, the Board has inferred a TDIU claim for the appellate period prior to May 19, 2011 and has taken jurisdiction over it. Please note 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). The issue of entitlement to TDIU for the period prior to May 19, 2011 is addressed in the REMAND portion of the decision below and is REMANDED to Department of Veterans Affairs Regional Office. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. From the January 22, 1990, effective date of the grant of service connection to September 22, 2002, medical evidence does not show intervertebral disc syndrome (IVDS) pronounced in degree, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the cite of the diseased disc and little intermittent relief. 2. A lack of medical evidence from September 23, 2002 to September 25, 2003 reflects no incapacitating episodes of IVDS and no separately ratable neurological manifestations of the Veteran's service-connected low back disability. 3. As of April 29, 2011, the Veteran has been shown to have forward flexion of the thoracolumbar spine 30 degrees or less. 4. As of May 10, 2011, the medical evidence shows that the Veteran has IVDS pronounced in degree, with persistent symptoms compatible with sciatic neuropathy as well as incapacitating episodes having a total duration in excess of six weeks over the past 12 months. 5. The Veteran's lumbar spine disability does not result in marked interference with employment or frequent periods of hospitalization. 6. The Veteran's right lower extremity radiculopathy of the sciatic nerve is no more than mild. 7. The Veteran's left lower extremity radiculopathy of the sciatic nerve is no more than moderate. 8. The Veteran initiated an appeal of an initial rating assigned for his service-connected lumbar spine disability, which was granted in an October 1996 rating decision. The initial claim for service connection was received on January 22, 1990. The Veteran's appeal was continuously adjudicated thereafter, including in the August 2012 rating decision, in which the RO awarded a separate 20 percent rating for LLE radiculopathy of the sciatic nerve and a separate 10 percent rating for RLE radiculopathy of the sciatic nerve, effective May 19, 2011 9. As of September 26, 2003, VA regulations provide for separate evaluations for any objective neurologic abnormality associated with a spine disability. However, the Veteran was rated under the spine criteria in effect prior to September 26, 2003, as it was more beneficial. The former rating criteria included both orthopedic and neurological manifestations. 10. On April 29, 2011, the Veteran has been determined to meet the revised spine criteria and at that point is entitled to consideration of separate ratings for orthopedic and neurological manifestations. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent since the January 22, 1990 effective date of the grant of service connection to May 9, 2011, for a low back disability, characterized as chronic lumbosacral strain, scoliosis with osteoarthritis, and lumbar radiculopathy, 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, 4.20, 4.27, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (as in effect prior to September 26, 2003); General Rating Formula for Diseases and Injuries of the Spine (as in effect since September 26, 2003). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 60 percent rating, but not higher, was met for the period beginning on May 10, 2011. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.20, 4.27, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295 (as in effect prior to September 26, 2003); General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 (as in effect since September 26, 2003). 3. The criteria for an extraschedular rating for lumbosacral strain and scoliosis. have not been met. 38 C.F.R. § 3.321(b)(1) (2012). 4. The criteria for an initial rating in excess of 20 percent for LLE radiculopathy of the sciatic nerve radiculopathy 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, 4.7, 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for an initial rating in excess of 10 percent for RLE radiculopathy of the sciatic nerve 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, 4.7, 4.124a , Diagnostic Code 8520 (2012). 6. The criteria for an earlier effective date of April 29, 2011, and not earlier, for the grant of separate ratings for radiculopathy of the right and left lower extremities have been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p) , 3.155(a), 3.400(o) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2004, January 2006, and in November 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his attorney suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Further, the Board notes that where service connection has been granted and an initial rating has been assigned, the claim for service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's initial disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. Accordingly, as the notice provided before service connection was granted for the lumbar spine in an October 1996 rating decision and for radiculopathy of the bilateral lower in the August 2012 rating decision was legally sufficient, VA's duty to notify the Veteran in regard to his claims of entitlement to increased initial disability ratings in this case was satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent August 2012 and December 2012 supplemental statements of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). Thus, the Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal and the Veteran has provided testimony before RO personnel and the Board. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual background The Veteran's service records do not show that the Veteran fractured any of his vertebrae while in service. An April 1994 VA examination report reflects that the Veteran complained of pain radiating to the right lower extremity. The back had no postural abnormality or fixed deformity. Range of motion measurements were as follows: forward flexion to 90 degrees, backward extension to 10 degrees, left lateral flexion to 40 degrees, right lateral flexion to 30 degrees, rotation left to 40 degrees, and rotation right to 30 degrees. The examiner noted that there was no demonstrable pain on motion and there was no evidence of neurological involvement. Nevertheless, the doctor did conclude that the appellant did indeed have herniated disc disease at L4-5. A September 1996 VA examination report reflects that the Veteran complained of daily pain in his lower back with occasional radiation into both thighs. He denied weakness in his lower extremities as a result of the back disability and he also stated that his bowel/bladder functions were "normal". Upon completion of the physical examination, the examiner determined that there appeared to be about 30 degrees of flexion of his lumbar spine. He bends only about 20 degrees to the right and 10 degrees to the left. He really doesn't extend his back beyond neutral. The Veteran complains of tenderness mainly in his lower back in the left paravertebral region. His pelvis is level. An April 1998 VA medical record notes that the Veteran reported having pain/numbness in both legs and that the Veteran had this for awhile. A May 1998 VA examination included range of motion testing showing flexion to 82 degrees, extension to 15 degrees, left lateral flexion to 35 degrees, right lateral flexion to 41 degrees, and bilateral rotation to 35 degrees. An August 1998 VA medical record notes that the Veteran complained of constant back pain. Extension of the back caused bilateral leg tingling sensation, left more involved than the right. Objective findings included that the Veteran had an antalgic gait, listing to the left side and is side bent. X-rays are positive for wedge compression deformity at L1 and there is scoliosis deformity on nonstanding x-rays. He has decreased range of motion in the axial spine, negative straight leg raising signs. Electrodiagnostic evaluation showed that the left peroneal motor nerve condition velocity was 45.9 meters per second and bilateral lower extremity EMG was normal. The analysis was left meralgia paresthetica (lateral femorocutaneous nerve entrapment), chronic low back pain with scoliosis, traumatic arthritis, L1 wedge compression, and neurogenic bladder with urgency. A March 1999 MRI report revealed diffuse and severe complex degenerative changes involving the entire lumbar spine and mild stenosis at L1-L2 and L3 with spondylolisthesis at L3-L4. A September 2004 VA examiner report reflects that the Veteran complained of pain radiating to his lower extremities. He had no bowel or bladder symptoms and he did not have any incapacitating episodes during the previous twelve months. He did report that he was limited in the amount of time he could be in one position. The VA examiner noted that the appellant had a slow limping, antalgic gait and that pain was observed. Examination of the lumbar spine revealed no tenderness and no spasms in the lumbar area and there is very poor muscle tone. The veteran can flex to 50 degrees but pain starts at 5 degrees in any movement of the lumbar spine. Extension can only occur to 5 degrees and pain occurs at 0. Rotation bilaterally is 20 degrees with pain starting at 5 to 10 degrees bilaterally. Side bending can only occur to 10 degrees with pain starting at 5 degrees. The range of motion of the lumbar spine was limited by pain, fatigue, weakness, and lack of endurance, with some incoordination. There is no ankylosis noted of the lumbar spine. Sensory examination was normal except for an area of the left lateral thigh that had decreased sensory to light touch. The Veteran was found to have degenerative disk disease, spinal stenosis/degenerative disk disease with residual neurogenic claudication that occurs with severe functional loss secondary to pain as the main factor. A February 2008 VA spine examination report reflects that on physical examination there was no abnormalities of the spine, the Veteran had normal posture and head position and there was symmetry in appearance. Motor examination was 5/5 in the lower extremities with normal muscle tone. There was no muscle atrophy. Lower extremities had normal sensation. Range of motion testing revealed left lateral flexion 0 to 20 degrees with pain beginning at 15 degrees, with pain on active and passive motion and pain after repetitive use. There was no additional loss of motion on repetitive use. A December 2010 VA examination report reflects that the Veteran complained that his back hurts constantly and during humid weather, it hurts more. He felt pain in his lower back and the pain went into both of his legs. He sometimes takes over the counter pain medications. He has not had surgery and he does not wear a brace or use any walking aids. The Veteran reported flare-ups, described as severe, like an electric shock when bending to pick up something. He had no additional limitation of motion or other functional impairment during flare-ups. The Veteran denied urinary problems. He indicated that he had numbness, but no paresthesias, leg or foot weakness, falls, or unsteadiness. He had no fatigue, decreased motion, weakness or spasms. He reported stiffness and spine pain in the lower back. The onset is with any movement, sitting too long, and bending. The Veteran described the severity from moderate to severe, constant, on a daily basis with a dull aching pain radiating to both legs. The examiner noted that there were no incapacitating episodes of spine disease. The Veteran is unable to walk more than a few yards. Inspection of the spine revealed normal posture and head position. There was symmetry in appearance and his gait was normal. There was no abnormal spinal curvatures aside from scoliosis, as noted. Physical examination revealed no spasms, atrophy, guarding, or weakness. He had pain with motion and tenderness on both sides. There was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing revealed flexion from 0 to 65 without pain and with pain up to 80 degrees. Extension from 0 to 15 without pain and with pain up to 20 degrees. Left lateral flexion from 0 to 30 degrees without pain and with pain up to 35 degrees. Left lateral rotation from 0 to 45 with no pain. Right lateral flexion from 0 to 25 degrees without pain and with pain up to 30 degrees. Right lateral rotation from 0 to 45 with no pain. There was objective evidence of pain on active range of motion as well as following repetitive motion. There was no additional limitation after three repetitions of range of motion. Reflexes were normal. Sensory and motor examinations were normal. Muscle tone was normal and there was no muscle atrophy. The examiner stated that the range of movements of the spine appeared within normal limits. He had difficulty walking on heels and was able to squat. The diagnosis was degenerative disc disease of the lumbar spine with mild to moderate loss of function. Associated problem was chronic lumbosacral strain. An April 29, 2011 private medical record revealed that the Veteran had chronic low back pain and was currently experiencing right sciatica. Forward flexion was limited to 30 degrees. Lumbar CT revealed mild to moderate scoliosis convex to the left at lumbar three level. There was severe osteoarthritic involvement of the lumbar spine with marked degenerative disc disease. In a May 10, 2011 letter, W.D. Smith, M.D., stated that he did not find ankylosis of the entire thoracolumbar. There was pronounced intervertebral disc disease which corresponded to the Veteran's persistent symptoms with associated right sciatic neuropathy. There was no neurologic deficits. The Veteran has been experiencing incapacitating episodes over the past year. These have varied in intensity, but have always persisted in excess of six weeks per episode. His activities of daily living such as stair climbing or any attempts at bending, squatting, or kneeling, have been severely affected. In his judgment, the spinal condition precludes the Veteran from being involved in gainful employment. A February 2012 QTC examination report reflects that the Veteran complained of numbness and tingling down both legs, left greater than right, on the lateral sides and going past the knee. The Veteran reported constant pain with flare-ups due to weather changes and exercise. He falls down if he bends too fast. Range of motion testing revealed that forward flexion ended at 35 degrees, with evidence of pain at 5 degrees; extension ended at 5 degrees with painful motion at 0 degrees; right and left lateral flexion to 10 degrees with pain, and right and left lateral rotation to 10 degrees with pain. The Veteran performed repetitive-use testing with post test range of motion results showing forward flexion to 10 degrees, extension to 0 degrees and bilateral lateral flexion and bilateral rotation to 10 degrees. The examiner noted that the Veteran had additional limitation in range of motion following repetitive use testing. The Veteran also had functional loss and/or functional impairment of the thoracolumbar spine to include less movement than normal, pain on movement, deformity, and interference with sitting, standing, and/or weight-bearing. The Veteran had tenderness from T12 to coccyx. He had abnormal spinal contour. He did not have muscle atrophy. Sensory examination revealed decreased sensation in the right foot/toes and absent in the left foot/toes. The Veteran had radiculopathy in the right lower extremity of mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesia and mild numbness. In the left lower extremity, he had moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesia and moderate numbness. The Veteran had bilateral involvement of the sciatic nerve which was mild on the right side and moderate on the left side. He did not have any additional neurologic abnormalities. The Veteran had intervertebral disc syndrome with incapacitating episodes of at least 2 weeks but less than 4 weeks. He occasionally uses a crutch and a walker and regularly uses devices to help him dress and to keep from falling. The examiner noted that the Veteran last worked in 1983 and quit due to his back condition. He has a great deal of trouble with ADLs due to his back. In a March 2012 addendum, the examiner stated that the Veteran has been unable to work due to his back condition since 1983. The examiner believed that the back pain, stiffness, and radiating pain prevented the Veteran from standing or sitting for long periods of time. His service-connected disability renders him unable to secure and maintain gainful employment. He has trouble dressing himself, putting on trousers, socks, and shoes. He cannot sit still or bend over to pick up objects and cannot wash dishes at the sink or mow his lawn. In November 2012, the Director of VA compensation provided an opinion regarding extra-schedular consideration. The Director discussed pertinent medical evidence of record. He noted that the Veteran's treatment records show he has numerous non service-connected disability that may affect employability as well including: coronary artery disease, gastroesophageal reflux disease, chronic obstructive pulmonary disease, arthritis in the cervical spine, hypertension, carpal tunnel syndrome, anemia, and macular degeneration. The Veteran had good range of motion in the spine, all the way up to the time of the last examination prior to the TDIU being awarded, in December 2010. No incapacitating episodes were noted and the Veteran has not been hospitalized for any extended periods of time due to the spine at the time of the December 2010 VA examination. He pointed out that the December 2010 VA examiner indicated that the Veteran's spinal condition would only cause mild to moderate loss of function. The Director concluded that the totality of the evidence did not support the contention that the Veteran's service-connected back condition was so exceptional or unusual as to render the use of the regular rating schedular standards impractical. Therefore, entitlement to an extra-schedular evaluation was denied. In addition, there is also no evidence that the Veteran's back condition, along, would preclude gainful employment in all settings, including a sedentary position. Therefore, entitlement to a TDIU on an extra-schedular basis is denied. II. Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 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 (2012). 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, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and 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. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, 25 Vet. App. 32 . 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. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 . A. Lumbosacral strain An October 1996 rating decision granted service connection and assigned an initial 40 percent disability rating for chronic lumbosacral strain with scoliosis, pursuant to Diagnostic Code (DC) 5295, effective January 22, 1990. Prior to September 26, 2003, lumbosacral strain was rated under diagnostic code (DC) 5295. Under this diagnostic code, a maximum 40 percent rating was warranted when there is listing of the whole spine to the opposite side, a positive Goldthwaite's sign, a marked limitation of forward bending in the standing position, a loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the foregoing with abnormal mobility on forced motion. Alternatively, a 40 percent rating is assigned for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a , Diagnostic Code 5292 (2002). The criteria for intervertebral disc syndrome, in effect prior to September 23, 2002, provides that a maximum 60 percent rating is given when the condition is pronounced in degree, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the cite of the diseased disc and little intermittent relief. A 40 percent rating is assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief, a 20 percent when moderate with recurrent attacks and a 10 percent when mild. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). A 60 percent evaluation is afforded under Diagnostic Code 5285 for the residuals of fractured vertebrae without cord involvement characterized with abnormal mobility requiring a neck brace. A 100 percent evaluation is afforded for the residuals of fractured vertebrae with cord involvement, where the veteran is bedridden, or where long leg braces are required. A 100 percent evaluation is also to be considered under the provisions of special monthly compensation for lesser involvement with limited motion and nerve paralysis. See 38 C.F.R. § 4.71a, Diagnostic Code 5285 Under Diagnostic Code 5286, a 60 percent evaluation is warranted for ankylosis of the spine at a favorable angle. A 100 percent evaluation is warranted for ankylosis of the spine at an unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). Under Diagnostic Code 5289, a 50 percent evaluation is warranted for unfavorable ankylosis of the lumbar spine. See 38 C.F.R. § 4.71(a), Diagnostic Codes 5286, 5289 (prior to 2003) Effective September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted, while a 40 percent rating is for application where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 20 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent rating is assigned with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. Part 4, § 4 .71a, Diagnostic Code 5293 (effective on and after September 23, 2002). Note 1 provides that for 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 neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). Either the old or new rating criteria may apply, whichever are most favorable to the veteran, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. The RO has considered and notified the Veteran of both the old and the new versions of the relevant criteria. Therefore, the Board's following decision results in no prejudice to the Veteran in terms of lack of notice of the regulatory revisions. Bernard v. Brown, 4 Vet. App. 384 (1993). Under the General Rating Formula for Diseases and Injuries of the Spine, a rating of 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is awarded for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). For VA purposes, 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a , Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2012). Under the former and revised criteria, the terms "mild," "moderate," "severe," and "pronounced" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The Board observes that the United States Court of Appeals for Veterans Claims (Court) noted that when rating spine disabilities under the revised criteria, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). The veteran's statements regarding the severity of his back disorder are deemed competent with regard to the description of symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be considered with the clinical evidence in conjunction with the appropriate rating criteria. The 40 percent rating in effect for the low back disorder is the maximum evaluation available under Diagnostic Code 5295 for severe lumbosacral strain and under 5292, which contemplates severe limitation of motion of the lumbar spine; therefore, this criterion is also not for application. In addition, because unfavorable ankylosis of the lumbar segment of the spine has not been diagnosed, Diagnostic Codes 5289 and 5240 are not for application. 38 C.F.R. Part 4 (2002) and (2012). Since the Veteran has not been diagnosed as having favorable ankylosis of the spine, or fusion of the lumbarical segments, then Diagnostic Codes 5286, 5289, and 5241 are also not for application. Id. The Veteran's service medical records do not indicate that the veteran fractured any of his vertebrae while in service. Hence, because the veteran did not fracture his vertebrae, Diagnostic Codes 5285 and 5235 are not for application. 38 C.F.R. Part 4 (2002) and (2012). Thus, the remaining question is whether the Veteran meets the criteria for a higher rating pursuant to the rating criteria for IVDS during any period of the appeal. Under the former criteria for IVDS, a maximum 60 percent rating is given when the condition is pronounced in degree, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the cite of the diseased disc and little intermittent relief. In this case, while the evidence shows complaints of constant back pain radiating to the lower extremities, there was no evidence of actual impaired motor or sensory function, or of any neurological abnormalities. In fact, testing perform in August 1998 revealed a normal bilateral lower EMG. Later findings in a February 2012 VA examination, at most, reflects that the Veteran's lumbar spine disability showed symptoms of severe impairment; however, none of the symptoms, findings or diagnosis equate to pronounced impairment, findings of sciatic neuropathy, muscle spasm and absent ankle jerk or other neurological findings that would warrant a finding of pronounced impairment. The Board does not minimize the Veteran's complaints or the medical findings; however, the evidence is consistent with a finding of severe impairment considering both orthopedic and neurologic manifestations under the criteria for IVDS. In sum, the evidence, at most, shows symptoms comparable to severe IVDS with recurring attacks with intermittent relief under former DC 5293. Hence, a rating higher than 40 percent is not warranted under the former DC 5293 during any time under appeal. With regard to the period from September 23, 2002 to September 25, 2003, the Board notes there is no medical evidence directly pertinent to the appeal. As such, the Board moves on to evaluating the Veteran's lumbar spine disability under the revised criteria in effect from September 26, 2003 to the present. Considering the pertinent findings with respect to the Veteran's orthopedic manifestations, that is limitation of motion with pain, under the revised criteria, the medical evidence from September 26, 2003 to April 28, 2011 does not a reflect a basis for more than a 20 percent rating under the General Rating Formula. In this regard, the Veteran demonstrated, at worse, forward flexion to 50 degrees at the time of the September 2004 VA examination with flexion improved to 65 degrees at the time of a December 2010 VA examination. Furthermore, the combined thoracolumbar range of motion at the time of the September 2004 VA examination was 115 degrees, which is consistent with a 20 percent rating, and at the time of the December 2010 VA examination was 225 degrees, which is consistent with a 10 percent rating under the revised criteria. Hence the 40 percent disability rating for the Veteran's service-connected lumbar spine was continued under the former criteria, which considered both orthopedic and neurological manifestations, as the revised criteria would only warrant lower disability ratings. An April 29, 2011 private medical record first established that the Veteran met the criteria for a 40 percent disability rating under the revised rating criteria. In this regard, the Veteran was found to have forward flexion to 30 degrees and under the General Rating formula for rating spine disabilities would warrant a 40 percent rating for forward flexion of the thoracolumbar spine, 30 degrees or less. Hence, at this point, consideration of separate disability ratings for orthopedic and neurological manifestations would be of greater benefit to the Veteran. However, before moving on to an analysis of the neurological manifestations, the Board finds that additional consideration is warranted for a higher rating under the revised criteria for IVDS. In this regard, evidence provided in a May 10, 2011 letter from the Veteran's private physician reflects findings that the Veteran had pronounced intervertebral disc disease with persistent symptoms with associated right sciatic neuropathy. In addition the private physician reported that the Veteran had incapacitating episodes over the past year, varied in intensity, but have always persisted in excess of six weeks per episode. Conversely, the February 2012 QTC examination report reflects that the Veteran had IVDS with incapacitating episodes of at least 2 weeks, but less than 4 weeks. However, the Board finds that this puts the evidence into equipoise, and by resolving all reasonable doubt in favor of the Veteran, concludes that a 60 percent disability rating, effective from May 10, 2011, is warranted either under the former criteria for rating IVDS based on pronounced IVDS or under the revised criteria for incapacitating episodes having a total duration of at least six weeks during the past 12 months, the maximum rating available for IVDS under the formula for ratings based on incapacitating episodes. The Board accepts that the Veteran has functional impairment and pain in rating this disability. See DeLuca. The Board finds that the Veteran's own reports of symptomatology to be credible, and have considered the DeLuca factors during the entire period on appeal. However, neither the lay nor medical evidence reflects the functional equivalent of pronounced impairment in degree, with persistent symptoms compatible with sciatic neuropathy (for any period prior to May 10, 2011), unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable anklyosis of the entire spine for the applicable periods of the former and revised rating criteria. As such, the Board finds that the ratings assigned are appropriate for the Veteran's lumbar spine disability. B. LLE and RLE radiculopathy of the sciatic nerve. An August 2012 rating decision granted a separate 20 rating for left lower extremity radiculopathy and a separate 10 percent rating for right lower extremity radiculopathy, associated with the lumbar spine disability, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective May 19, 2011. Under Diagnostic Code 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve. 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, whereby 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, DC 8520 (2012). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. C.F.R. § 4.124a. With respect to the Veteran's right lower extremity, the evidence of record does not show that the Veteran's right lower extremity radiculopathy was more than mild in nature. In this regard, the evidence has shown that the Veteran has consistently reported a lesser degree of symptom severity in respect to his right lower extremity. Moreover, medical evidence constantly found normal sensory examinations of the right lower extremity until the February 2012 QTC examination. At that time, the VA examiner noted decreased sensation in the right foot and toes and described the Veteran's right lower extremity radiculopathy symptoms as mild pain, mild paresthesias and/or dysethesia and mild numbness. Involvement of the sciatic nerve on the right side was described as mild. Based on these findings, the Board finds that the Veteran is appropriately assigned a 10 percent rating for mild impairment of the right lower extremity radiculopathy of the sciatic nerve. In comparison, a September 2004 VA examination report reflects that the Veteran had objective findings pertaining to his left lower extremity noted as decreased sensory to light touch in an area of the left lateral thigh. The February 2012 VA examiner further distinguished the levels of severity between the left lower extremity from the right lower extremity. Compared to the right, the left lower extremity radiculopathy was described as the Veteran having moderate pain, moderate paresthesias and/or dysethesia and moderate numbness. Involvement of the sciatic nerve on the left side was described as moderate. Sensory examination revealed that sensation was absent in the left foot/toes. Based on these findings, the Board finds that the Veteran is appropriately assigned a 20 percent rating for moderate impairment of the left lower extremity radiculopathy of the sciatic nerve. The Board acknowledges the Veteran's statements regarding the severity of his lumbar spine disabilities, to include bilateral lower extremity radiculopathy of the sciatic nerve. The Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In this regard, the Board acknowledges the Veteran's statements that his service-connected lumbar spine disabilities, to include radiculopathy of the bilateral lower extremities, are worse than the assigned ratings. However, the Board places significantly more weight on the objective clinical findings reported on examination than the Veteran's statements as the Veteran is not shown to have the requisite training to determine the severity level of his service-connected disabilities on appeal. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. §§ 4.71a and 4.124a with respect to determining the severity of his service-connected disabilities on appeal. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). In evaluating each of the Veteran's claims for higher ratings on appeal, 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). 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 first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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. As noted above, in November 2012, the Director of VA compensation provided an opinion regarding extra-schedular consideration. The Director discussed pertinent medical evidence of record. He noted that no incapacitating episodes were noted and the Veteran has not been hospitalized for any extended periods of time due to the spine at the time of the December 2010 VA examination. In addition, the December 2010 VA examiner indicated that the Veteran's spinal condition would only cause mild to moderate loss of function. He also noted that the Veteran's treatment records show he has numerous non service-connected disability that may affect employability as well including: coronary artery disease, gastroesophageal reflux disease, chronic obstructive pulmonary disease, arthritis in the cervical spine, hypertension, carpal tunnel syndrome, anemia, and macular degeneration. The Director concluded that the totality of the evidence did not support the contention that the Veteran's service-connected back condition was so exceptional or unusual as to render the use of the regular rating schedular standards impractical. With respect to the first prong of Thun, in light of the above, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology due to his service-connected lumbar spine disabilities and provides for higher ratings for more severe symptomatology. There is no competent credible evidence of record that the Veteran has symptoms pertaining to his lumbar spine disabilities, to include bilateral lower extremity radiculopathy of the sciatic nerve, that are not contemplated in the rating criteria. Therefore, a further analysis under Thun is not warranted. III. Earlier Effective Date The Veteran is seeking an effective date prior to May 19, 2011 for the grant of separate disability ratings for bilateral lower extremity radiculopathy, secondary to his service-connected lumbar spine degenerative disc disease. Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1) (2012). A claim is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2012). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2012). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 C.F.R. § 3.400(o)(2). Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400 (0)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). In an August 2012 rating decision, the RO granted separate disability ratings for right and left lower extremity radiculopathy, secondary to service-connected lumbar spine degenerative disc disease, effective the date of the May 19, 2011, the date of correspondence that the RO accepted as claim for individual unemployability, which the RO considered a claim for increase. In this case, the Veteran seeks earlier effective dates prior to May 19, 2011, for separate ratings for bilateral lower extremity radiculopathy. The grant of the separate evaluation essentially constituted an increase rating for the symptomatology associated with the Veteran's lumbar spine disability, following the following his initial appeal for an increased evaluation for lumbar spine disability. In this regard, the separate evaluation was awarded during the pendency of the Veteran's original appeal for initial increased rating for lumbar spine disability. During the pendency of the Veteran's original initial increased rating appeal, effective as of September 26, 2003, substantive changes were made to the schedular criteria for evaluation of diseases and injuries of the spine, including providing for a separate compensable evaluation for any associated objective neurologic abnormalities under the appropriate diagnostic code. 38 C.F.R. § 38 C .F.R. § 4.71a, general rating formula for diseases and injuries of the spine, Note (1). Prior to the 2003 amendments, the rating criteria for evaluating a lumbar spine disability included evaluation of neurologic impairment under Diagnostic Code 5294 for sacro-iliac injury and weakness, which was rated by comparison to Diagnostic Code 5295 for lumbosacral strain. 38 C.F.R. § 4.71a , Diagnostic Codes 5294 and 5295 (in effect prior to September 26, 2003). The amended regulations as of September 26, 2003, provided for separate evaluations for neurologic impairments affecting each extremity as a result of spine disability. 38 C.F.R. § 38 C .F.R. § 4.71a, general rating formula for diseases and injuries of the spine, Note (1). The Veteran was assigned the separate rating for bilateral lower extremity radiculopathy as secondary to his lumbar spine disability in accordance with Note (1) of the amended regulations. Id. In this regard, in the August 2012 rating decision, the RO specifically noted that it was not until the May 19, 2011 claim when it was found that his lumbosacral spine condition alone met the revised rating criteria for a 40 percent rating without including the radiculopathy. Previously, orthopedic and neurological manifestations were considered in the rating criteria and as such, provided the Veteran with the initial 40 percent disability rating. The Board acknowledges that the Veteran's originally claim was received on January 22, 1990 and the Veteran has complained of radiating pain to the lower extremities and numbness throughout the entire pendency of his appeal. However, since the award of a separate ratings for bilateral lower extremity radiculopathy was pursuant to the liberalizing change to 38 C.F.R. § 4.71a , effective from September 26, 2003, the benefits pursuant to the change will be effective no earlier than the effective date of the amended law. See VAOPGCPREC 7-2003 (Nov. 19, 2003); 69 Fed. Reg. 25179 (2004). See also, 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. However, since it was more advantageous to the Veteran to continue his 40 percent rating under the former criteria, which took into consideration radiculopathy, until such time as he met the criteria for a 40 percent rating under the revised criteria without including radiculopathy on April 29, 2011, the proper assignment of the effective date for the Veteran's separate ratings for bilateral lower extremity radiculopathy can be no earlier than April 29, 2011. ORDER Entitlement to an initial rating in excess of 40 percent since the January 22, 1990 effective date of the grant of service connection to May 9, 2011, for a low back disability, characterized as chronic lumbosacral strain, scoliosis with osteoarthritis, and lumbar radiculopathy, is denied. A 60 percent rating, but not higher, for the Veteran's service-connected low back disability, is granted beginning on May 10, 2011, subject to the law and regulations governing the payment of monetary awards. Entitlement to an extraschedular rating for a low back disability is denied. Entitlement to an initial rating in excess of 20 percent for LLE radiculopathy of the sciatic nerve is denied. Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy of the sciatic nerve is denied. Entitlement to an effective date of April 29, 2011, and not earlier, for the grant of separate ratings for LLE and RLE radiculopathy of the sciatic nerve, is granted. REMAND As noted above, a TDIU was awarded in an August 2012 rating decision and was made effective from May 19, 2011, the date of an inferred claim for a TDIU. However, as TDIU is an aspect of a claim for a higher rating, a claim for a TDIU has also been pending since the Veteran appealed the initial ratings assigned for his service-connected lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the record, the Board finds that a retrospective medical opinion addressing the level of occupational impairment from his service-connected disabilities, for the period prior to May 19, 2011, is necessary to determine the appropriate effective date for the grant of the TDIU. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Accordingly, this matter is REMANDED for the following actions: 1. Take all necessary actions to properly develop the claim for TDIU for the period prior to May 19, 2011. 2. Thereafter, obtain a retrospective medical opinion on the impact of the Veteran's service-connected disabilities on his employability prior to May 19, 2011. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination report. Any indicated studies should be conducted. The examiner should be provided with the Veteran's service-connected disabilities for the period prior to May 19, 2011. The examiner should opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation for the period prior to May 19, 2011, taking into consideration his work experience and educational background but not his age or nonservice- connected disabilities. The VA examiner should provide a rationale for any opinion expressed. 3. Then, readjudicate the claim for entitlement to a TDIU for the period prior to May 19, 2011. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs