Citation Nr: 1326355 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-03 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine with spinal stenosis and neurogenic claudication of the bilateral lower extremities. ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to September 1992, with a total of three years, eleven months, and four days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision the RO denied a claim for a disability rating in excess of 10 percent for the service-connected lumbar spine disability identified then as degenerative joint disease of the lumbar spine; and also denied service connection for spinal stenosis of the lumbar spine with neurogenic claudication of the bilateral lower extremities. After the Veteran filed a notice of disagreement from that rating decision, the RO issued a rating decision in December 2009, expanded the definition of the Veteran's degenerative joint disease of the lumbar spine to include spinal stenosis and neurogenic claudication of the bilateral lower extremities. This case was before the Board in December 2012 and was remanded for additional development. In January 2013 written argument, the Veteran asserts clear and unmistakable error (CUE) in the Board's December 2012 decision. The Board notes that in that decision the Board recognized that service connection was already in effect for the Veteran's spinal stenosis and neurogenic claudication of the bilateral lower extremities and remanded the matter to the RO for further development and to reajudicate the Veteran's claim seeking a higher rating for his back disability. Because this issue is currently in appellate status, there is no final adverse RO or Board decision that can be subject to a CUE attack; thus, as a matter of law, he cannot assert a claim of CUE. See Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims, which includes electronic VA treatment records. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's low back disorder, degenerative joint disease of the lumbar spine with spinal stenosis, when considering his pain and corresponding functional impairment, is analogous to disability manifested by forward flexion greater than 30 degrees but no greater than 60 degrees. 2. The Veteran's lumbar spine disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician; favorable ankylosis; bowel or bladder impairment. 3. The Veteran's lumbar spine 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. 4. The Veteran's lumbar spine 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. The criteria for a 20 percent rating for the service-connected lumbar spine disability have been met. 38 U.S.C.A. §§ 1154 (a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2012). 2. 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, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). 3. 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, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The notice requirements regarding an increased rating were accomplished in an October 2008 letter that was provided before the adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claim. He was told that the evidence must show that his service-connected disability had gotten worse. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records, VA treatment records, private treatment records and lay statements. He was also provided with VA examinations in connection with his claim. 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). Finally, this case was remanded by the Board in December 2012. The remand directed the RO to afford the Veteran a VA examination. There has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). II. Relevant Laws and Regulations 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 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 (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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. Therefore, 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. 75, 85 (2010). 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 United States Court of Appeals for Veterans Claims (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 5242, the code for evaluating degenerative arthritis of the spine. 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. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four 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). III. Facts & Analysis VA outpatient records reveal continuous complaints for chronic low back pain with radicular-like symptoms to the bilateral lower extremities. The Veteran's outpatient records indicate that the Veteran was taking medication and receiving steroid injections for his low back pain. November 2010 VA outpatient records reveal that the Veteran had a history of spinal stenosis with sciatica to the right leg. It was noted that the Veteran denied having bowel or bladder incontinence or weight loss. May 2011 VA outpatient records indicate that the Veteran's low back pain was a 10 and the Veteran described the pain as "intolerable." Also noted was that he suffered from pain radiating down his left leg. He stated that his left leg felt like it was "giving way." June 2011 records show that the Veteran had low back pain with radiculopathic symptoms. In the January 2009 VA examination, the Veteran reported having stiffness and numbness in his low back. He stated that his low back pain occurred 2 times per day and lasted for an hour. The Veteran noted a pain level of 10, elicited by physical activity. The pain was relieved by medication, steroid injections and rest. It was noted that the Veteran did not suffer from loss of bladder or bowel control. He indicated occasional tingling in the left thigh. The Veteran reported difficulty walking, standing for prolonged periods of time and bending forward. He stated that his condition did not result in incapacitation. It was noted that the Veteran's gait was normal. Upon examination, the examiner found no evidence of radiating pain on movement. There were no muscle spasms or ankylosis found. Tenderness was noted of the lumbarsacral spinous process. The Veteran's range of motion was 65 degrees and extension was 25 degrees. The right and left lateral flexions were each 20 degrees and the right and left rotation were each 20 degrees. Pain was experienced at the degree mentioned above. Repetitive motion produced fatigue, weakness, lack of endurance and incoordination. The neurological examination of the lower extremities showed motor and sensory function within normal limits and reflexes were all 2+. At the May 2009 examination, the Veteran stated that he was not experiencing any incapacitation. He reported pain in his right hip and leg that radiated down to his ankle. The Veteran indicated that the pain was a 10 and that it occurred constantly. He stated that at the time of pain, he can function with medication and uses a transcutaneous electrical nerve stimulation unit. Upon examination, the Veteran's range of motion for forward flexion was 65 degrees and extension was 25 degrees. The right and left lateral flexions were each 25 degrees and the right and left rotation were each 25 degrees. Pain was experienced at the degree mentioned above. Repetitive motion produced pain and there were no signs of intervertebral disc syndrome or additional limitation in degrees. The neurological examination of the lower extremities showed motor and sensory function within normal limits and reflexes were all 2+. The examiner diagnosed the Veteran with having neurogenic claudication. The Veteran was afforded a VA examination in March 2013. The Veteran reported that he had received approximately 15 epidural steroid injections for his low back pain, but had not received any in the past year. It was noted that the Veteran experienced flare-ups that occurred with outside activities. He complained of weakness and fatigability. The Veteran's range of motion for forward flexion was 90 degrees or greater and his extension was 20 degrees. Both his right and left lateral flexions were 25 degrees. His right lateral rotation was 25 degrees and his left lateral rotation was 30 degrees. There was no objective evidence of pain with any movement. The Veteran's results were the same after repetitive use. The Veteran experienced functional loss and impairment after repetitive, which included weakened and less movement than normal, excess fatigability and pain on movement. The muscle strength and sensory examination results were all normal. The Veteran's reflex results were 1+ for both right and left knees, and 1+ for his right ankle and 2+ for his left ankle. The examiner found no neurologic abnormalities. The examiner reported that upon examination, there was no evidence of peripheral neuropathy or radiculopathy. A. Lumbar Spine Disability The Veteran's lumbar spine disability is evaluated as 10 percent disabling under Diagnostic Code 5242. The Veteran contends that his condition is more severely disabling than that reflected by a 10 percent rating. Resolving all doubt in favor of the Veteran, and given the Veteran's competent reports of constant pain on movement, which have been objectively corroborated by VA examiners on formal VA examinations, and given the frequency and severity of the Veteran's flare-ups and consistent use of medication for pain, see Jones v. Shinseki, 26 Vet. App. 56 (2012), the Board finds that the Veteran's lumbar spine disorder more nearly approximates a 20 percent rating. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees. See DC 5242. In the January 2009 and May 2009 examinations, forward flexion was measured at 65 degrees and the results indicated objective findings of pain on active range of motion at 65 degrees. The January 2013 VA examiner reported that the Veteran's functional limitations included less movement than normal and pain on movement, as well as disturbance of locomotion and interference with sitting and/or weight-bearing. The examiner noted that the Veteran had subjective discomfort with prolonged standing. Further, none of the examinations were conducted during a period of flare-up, which the evidence shows occurs on a regular basis, and thus the Veteran likely has additional range of motion loss beyond that shown on VA examination. Thus, in light of DeLuca and Cullen, such findings more closely approximate the criteria for a 20 percent rating under the General Schedule for Spine Disorders. The evidence does not demonstrate that the symptoms are productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine as to warrant a 40 percent rating during this period, even after consideration of pain, weakness and other symptoms described in DeLuca. See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The evidence does not show any indication of any ankylosis of the thoracolumbar spine. 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 on file does not show that for any part of the appeal that there is any significant extent of incapacitating episodes of acute signs and symptoms due to the degenerative joint disease disorder involving the cervical or thoracolumbar spine, that required bed rest prescribed by a physician and treatment by a physician. B. Associated Lower Extremities Neurologic Symptoms With respect to neurologic abnormalities, service connection is in effect for neurogenic claudication of the bilateral lower extremities. Pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board observes that the Veteran has complained of radiating pain from his low back into his lower extremities. The Veteran is competent to provide evidence regarding the radicular-like symptoms in the bilateral lower extremities, as well as the level of severity of pain or numbness he perceives in the lower extremities. 38 C.F.R. § 3.159(a)(2). The findings described in the VA medical reports and examinations discussed above are consistent with the Veteran's competent and credible report of neurological impairment originating from the lumbosacral spine area into his 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. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. 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. 38 C.F.R. § 4.123. 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. Resolving all doubt in favor of the Veteran, the Board finds that the competent evidence of record warrants a separate disability rating for the right and left lower extremities for neurogenic claudication. Based on the record, the Board finds that the symptoms of the bilateral extremities are productive of mild incomplete paralysis of the sciatic nerves. The Board finds that the right and left lower extremities warrant separate disability ratings of 10 percent each, based on the neurogenic claudication associated with the service-connected lumbar spine disability. See 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Based on the neurological findings and the Veteran's lay report of his symptoms, however, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent for each lower extremity under Diagnostic Code 8520 because he has no more than mild neurological impairment. 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 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 of Appeals for Veterans Claims 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. The Board does note that during the October 2005 VA examination, the Veteran indicated that he lost 1 day of work each month. However, he continued to work and as reflected in the March 2013 VA examination, is doing contract work for the Post Office. The Board thus finds that a claim for TDIU has neither been raised by the Veteran nor by the record. ORDER A 20 percent rating for degenerative joint disease of the lumbar spine is granted, subject to controlling regulations applicable to the payment of monetary benefits. A separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the right lower extremity is granted, subject to controlling regulations applicable to the payment of monetary benefits. A separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the left lower extremity 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