Citation Nr: 1325978 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 07-35 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a higher initial rating for chronic lumbar strain with degenerative joint disease of the lumbar spine (low back disability), rated 10 percent disabling, prior to July 30, 2011. 2. Entitlement to a disability rating in excess of 30 percent for low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had National Guard Service from February 1974 to April 1983, to include a period of active duty for training (ACDUTRA) from May 10, 1974 to November 9, 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO), which granted service connection for low back disability and assigned a 10 percent disability evaluation, effective February 17, 2006, which included a 10 percent deduction assigned for a preservice disability. This case was before the Board in May 2011 and was remanded for additional development. In March 2002, the RO increased the rating assigned to the low back disability to a 30 percent disability rating, effective July 30, 2011, which included a 10 percent deduction assigned for a preservice disability. FINDINGS OF FACT 1. The evidence does not show that the Veteran had a pre-existing low back disorder prior to service and was sound upon his entry into active duty. 2. Resolving all reasonable doubt in the Veteran's favor, effective February 17, 2006, given his pain and corresponding functional impairment, together with the ameliorative effects of medication to treat the disability, the Veteran's low back disability has been productive of limitation of flexion to 30 degrees. 3. The Veteran's low back disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician. 4. Since February 17, 2006, the Veteran's low back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 5. Since February 17, 2006, the Veteran's low back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Effective February 17, 2006, the criteria for an initial rating 40 percent for low back disability have been met. 38 U.S.C.A. §§ 1154 (a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.322, 4.7, 4.10, 4.22, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. Effective February 17, 2006, the criteria for a separate 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1154 (a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.123, 4.124a, Diagnostic Code 8520 (2012). 3. Effective February 17, 2006, the criteria for a separate 10 percent evaluation for left-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1154 (a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.123, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated with the claims folder the service medical records and reports of his post-service treatment for back disability. He was also afforded formal VA examinations in May 2006 and in July 2011 to evaluate the nature, extent and severity of this condition. The Board finds that the examination reports are adequate for the purposes of deciding the claim on appeal because the examiners conducted physical examinations, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, the Board observes that the Veteran does not report that the condition has worsened since that time, and thus a remand is not required solely due to the passage of time since the March 2004 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Finally, the RO has complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the Board finds that there is no further action to be undertaken to comply with VA's duty to notify or assist and the Veteran will not be prejudiced by the Board's adjudication of his case. II. Higher Rating Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the Court has 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 Court has recently held that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). Further, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine, no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The Veteran's service-connected degenerative disc disease of the lumbar spine, is currently rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237, the code for evaluating a lumbosacral or cervical strain. Under VA's Rating Schedule, disabilities of the spine, are to be evaluated 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. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for 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 forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. (See also 38 C.F.R. § 4.71a, Plate V). Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 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. 38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2011). If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). A. Presumption of Soundness and Aggravation In the July 2006 rating decision, service connection was granted for a low back disability. In assigning a rating evaluation, the RO determined that the medical evidence of record supported a 20 percent rating evaluation. However, the RO found that service treatment records indicated the Veteran's current level of disability was a based on in-service aggravation of a preexisting disability, and, in accordance with 38 C.F.R. § 3.322(a) and 38 C.F.R. § 4.22, deducted 10 percent from the possible 20 percent rating, and assigned an initial 10 percent disability rating. Under 38 C.F.R. § 3.322(a) and 4.22, where service connection is based on aggravation of a preexisting disability by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into the active service or it is determined upon the evidence of record to have existed at that time. It is necessary, therefore, to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. In addressing the question of whether a disability that pre-existed service was, in fact, aggravated during service, the evidentiary burdens between VA and the claimant vary according to whether the disability was found on the examination for entrance into active service. "[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment . . . ." 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b) (2012) (implementing regulation for section 1111). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b ). A '[h]istory of preservice existence of conditions recorded at the time of [entrance] examination does not constitute notation of such conditions but will be considered together with all other material evidence in determinations as to inception.' 38 C.F.R. § 3.304(b). In assigning a disability rating, the RO noted that the Veteran's February 1974 Report of Medical History at service entry shows that he had marked "yes" next to recurrent back pain; however, the Report of Medical Examination at service entry, conducted that same day, found that the Veteran's spine was normal, ruling out a diagnosis of any back disability. Moreover, a September 1978 periodic Report of Medical Examination likewise reflects that the Veteran's spine was normal. In light of the foregoing, the Board finds that the Veteran was sound at service entry and thus no deduction is warranted as he had no ascertainable disability at service entry. B. Rating higher than 10 percent prior to July 30, 2011, and in excess of 30 percent since that time The Veteran seeks an initial disability rating in excess of the 10 percent rating in effect for his low back disability prior to July 30, 2011. In support, he cites his level of pain and the medications he uses to treat the pain. He also reports taking pain medication on the morning of the May 2006 VA examination, which he maintains camouflaged the true nature, extent and severity Service treatment records reveal complaints and treatment for persistent low back disability. A June 1974 clinical report indicates decreased range of motion and tenderness to the L-5 spine area. On the Veteran's separation Report of Medical History, it was noted that his back bothered him due to occasional lifting. Post-service treatment records reflect complaints of low back in 1984. Chiropractic treatment records dated October 1990 through July 1995 show physical therapy treatment for his back pain. The medical records reflect a July 1999 surgical procedure for herniated L4-L5 which showed marked deterioration. September 1999 private treatment records reveal that the Veteran suffered from low back pain and had to take medication, to include Loratab and Robaxin to relieve the pain. Private treatment records show that the Veteran underwent a micro lumbar diskectomy in October 1999. Private treatment records reveal ongoing procedures for caudal epidural steroid injections, to include treatment from May 2001 through May 2011. At a VA spine examination in May 2006, the Veteran stated that he had two low back surgeries in 1999 to repair the L4 and L5 discs. He stated that he suffered from flare-ups once or twice every three to four months that would last about two to three days. He stated that when the pain was so severe that he was unable to work and had to stay in bed. He stated that he has to have caudal blocks for his spine every four to five months. He stated that the blocks relieved some pain, but not completely. He stated that he also took Loratab to relieve the pain. Upon examination, the Veteran's forward flexion as 0-60 degrees with moderate limitation due to pain. His extension was 0-20 degrees. His lateral flexions for both right and left sides were 0-20 degrees with moderate limitation due to pain. His lateral motion for both right and left were 0-20 degrees. It was noted that ht Veteran had increased muscle weakness and increased pain during repetitive motion. There was no additional loss in degrees of range of motion during repetitive motion. The examiner noted that the Veteran had a steady gait and normal muscle tone and strength. The Veteran's MRI showed mild degenerative facet joints at the L4-L5 and L5-S1 and minimal spondylosis of the lumbar spine. Private medical treatment records dated in June 2007 show a diagnosis of lumbar radiculitis and January 2009 VA treatment records indicate that the Veteran is taking medication for his low back pain. Resolving all doubt in favor of the Veteran, and given the Veteran's competent reports of daily constant pain, which has been objectively corroborated by a VA examiner in the VA examination, and given the frequency and severity of the Veteran's flare-ups, in light of DeLuca, Cullen and Jones, the Board finds that after consideration of the functional limitations and the impact of his pain medications, and in particular his caudal blocks, the Veteran's low back disability warrants the maximum rating of 40 percent for limitation of motion due to pain prior to July 30, 2011. As the period beginning July 30, 2011, the Veteran was afforded a July 2011 VA examination on that date. A complete review of the Veteran's claims file was conducted. The Veteran indicated that he receives caudal blocks every two to four months with about 35 percent to 45 percent relief. Usually there is relief for 3-4 weeks but then the pain returns. The Veteran stated that the pain is in his low back and is present all the time. He indicated that the pain is worse when he stands. The pain level is usually at 7 or 8. The pain radiates down his left thigh and he has stiffness in his back. It was noted that he has no loss of control of the bowels or bladder. He indicated that his back flares-up about 3 or 4 times a week and he cannot move. The Veteran stated that he has weakness in his legs and occasionally uses a can. It was noted that he was on various medication. Upon examination, the Veteran's forward flexion was 36 degrees and extension was 18 degrees. His later flexion was 12 degrees to the right and 10 degrees to the left. His rotation was 10 degrees, bilaterally. All of the movements were associated with pain. It was noted that the Veteran did not move his back much during repetitive movement and complained for stiffness and pain. On repetitive movement, forward flexion was 25 degrees and extension was 18 degrees. His lateral flexion was 12 degrees to the right and 10 degrees to the left. His rotation was 10 degrees, bilaterally. Private treatment records reveal treatment for low back pain, to include a caudal epidural steroid injection on October 2011. After considering the evidence of record, the Board finds that an evaluation under the General Rating Formula shows entitlement to a 40 percent rating from July 30, 2011. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less. See DC 5237. At the July 2011 VA examination, the Veteran's forward flexion was 36 degrees. The results indicated objective findings of pain on active range of motion. The examiner noted that the Veteran suffers from constant flare-ups and that he felt pain daily. Further, the examination was not conducted during a period of flare-up and thus the Veteran likely has additional range of motion loss beyond that shown on VA examination. Thus, in light of DeLuca, Cullen and Jones, such findings more closely approximate the criteria for a 40 percent rating under the General Schedule for Spine Disorders. As a rating in excess of 40 percent during the entire appeal period, the Board finds that the preponderance of the evidence is against a finding that the symptoms are productive of unfavorable ankylosis of the entire thoracolumbar spine so as to warrant assigning the disability a 50 percent disability rating. Given the range of motion findings throughout the appeal, the evidence affirmatively shows that the Veteran does not have any ankylosis of the thoracolumbar spine. Therefore, the Board finds that a rating higher than 40 percent is not warranted for this period. Finally, throughout the appeal, a rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5243 (2012). The Veteran does not claim and the evidence of record does not show that the Veteran suffered from incapacitating episodes due to intervertebral disc syndrome involving the thoracolumbar spine which required bed rest prescribed by a physician and treatment by a physician. C. Radiculopathy As discussed below, the evidence indicates that the Veteran has radiculopathy involving the left and right lower extremities associated with his lumbar spine disability. The evidence of record reveals that the Veteran has complained about radiating pain in both lower extremities. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe incomplete paralysis. Moderate incomplete paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild incomplete paralysis. Pursuant to 38 C.F.R. § 4.123, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. The Board notes that the terms "slight," "moderate," and "severe" under Diagnostic Code 8520 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. Service treatment records dated June 1974 showed that the Veteran suffered from pain down the back of his legs to his ankle. In a post-service private medical report, dated February 1999, it reflects that the Veteran suffered from pain in his left leg and had stiffness and pain upon examination and range of motion tests. In a September 1999 private treatment record, the Veteran stated that the pain radiated predominantly down the left leg with occasional radiation to the right leg. At an October 2006 VA outpatient treatment records, the Veteran stated that the pain from his lower back radiates to his posterior bilateral thighs and legs to his ankles. In an October 2011 private medical report, the record reflects leg pain radiating in both legs. Giving the Veteran the benefit of the doubt, the Board finds that the competent lay and medical evidence of record warrants a separate disability rating for the left and right lower extremities for radiculopathy associated with the service-connected low back disability. The Veteran is competent to provide evidence regarding the radicular-like symptoms in the left and right lower extremities, and as to the level of severity of pain or numbness he perceives in the lower extremities. 38 C.F.R. §3.159(a)(2). On that basis, the Board finds that the left and right lower extremities warrant disability ratings of 10 percent for radiculopathy in the respective lower extremities associated with the service-connected low back disability. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Given these objective findings, the Board finds that the preponderance of the evidence is against a conclusion that the Veteran's lower extremities' neurological impairment more closely approximates the criteria for a 20 percent rating under Diagnostic Code 8520 because he has no more than mild neurological impairment. There is no evidence of any other objective neurologic abnormalities associated with the service-connected low back disorder. The report of the July 2011 VA examination shows that the Veteran denied having any bowel or bladder dysfunction. There is no other evidence to the contrary and the Veteran has not claimed having any other objective neurologic abnormalities associated with the low back disability, so as to warrant a separate evaluation on that account. D. Extraschedular consideration and TDIU In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The applicable rating criteria adequately contemplate the orthopedic and neurological manifestations of the Veteran's lumbar spine disability, which include pain and limitation of motion as well as neurologic impairment of the lower extremities. The rating criteria are thus adequate to evaluate the spine and referral for consideration of extraschedular rating is not warranted. The Board also recognizes that the Court has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not contended that his back condition renders him unemployable and the evidence does not otherwise suggest that this is the case. Indeed, at last report, the Veteran was employed. As such, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record. ORDER Effective February 17, 2006, a 40 percent rating for chronic lumbar strain with degenerative joint disease of the lumbar spine is granted, subject to the law and regulations governing payment of monetary benefits, Effective February 17, 2006, a separate 10 percent rating for left lower extremity radiculopathy is granted, subject to controlling regulations applicable to the payment of monetary benefits. Effective February 17, 2006, a separate 10 percent rating for right lower extremity radiculopathy is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs