Citation Nr: 1327072 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 07-01 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for degenerative changes of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 2005. He had combat service in Iraq. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case is currently under the jurisdiction of the Seattle, Washington, RO. The Veteran provided testimony at a videoconference hearing before the undersigned in April 2012; a transcript of the hearing is of record. At the hearing, the Veteran affirmed that he wanted consideration of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Court of Appeals for Veterans Claims has clarified that a claim for a TDIU 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). Thereafter, in Locklear v. Shinseki, the Court distinguished the instant case from Rice and recognized that VA's Secretary specifically separated the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. 24 Vet. App. 311, 315 (2011). The Court in Locklear held that "[b]ifurcation of a claim generally is within the Secretary's discretion." Id. Here, the record reflects that during the course of the current appeal, entitlement to TDIU was denied in an August 2007 rating decision. The Veteran was mailed notification of the denial in August 2007, and he did not appeal. In the Board's prior August 2012 remand, it was noted that the Veteran asserted entitlement to TDIU based in part on other service-connected disabilities (posttraumatic stress disorder) not currently before the Board. As such, the Board referred the claim to the AOJ. To date, it does not appear the requested action has been completed. Therefore, the claim of entitlement to TDIU is again referred to the AOJ for appropriate action. In August 2012, the Board remanded this claim for additional development and consideration. All requested actions have been completed and the claim has been returned to the Board. FINDINGS OF FACT 1. Prior to April 20, 2012, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the preponderance of the evidence shows that his degenerative changes of the lumbar spine has been productive of pain with forward flexion of the thoracolumbar spine greater than 30 degrees. 2. Since April 20, 2012, considering the Veteran's pain and corresponding functional impairment, including during flare-ups, his degenerative changes of the lumbar spine has been productive of pain with forward flexion of the thoracolumbar spine less than 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. From February 21, 2011, to October 9, 2012, the Veteran's low back disability was productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 5. Since October 10, 2012, the Veteran's low back disability was productive of neurologic impairment of the right lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. 6. Since February 21, 2011, 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. Prior to April 20, 2012, the criteria for an initial disability rating in excess of 20 percent rating for degenerative changes of the lumbar spine have not 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, Diagnostic Code (DC) 5242 (2012). 2. Since April 20, 2012, the criteria for a 40 percent disability rating, but no higher, for degenerative changes of the lumbar spine 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, DC 5242 (2012). 3. For the period from February 21, 2011, to October 9, 2012, the criteria have been met for a separate 10 percent disability rating, but no higher, for mild incomplete paralysis of the right lower extremity. 38 C.F.R. §§1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). 4. Since October 10, 2012, the criteria are met for a 20 percent disability rating, but no higher, for moderate incomplete paralysis of the right lower extremity. 38 C.F.R. §§1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). 5. Since February 21, 2011, the criteria have been met for a separate 10 percent disability rating, but no higher, for mild incomplete paralysis of the left lower extremity. 38 C.F.R. §§1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veteran's appeal arises from his disagreement with the initial evaluation following the grant of service connection. 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). 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 and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and VA treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations in June 2005, July 2009, February 2011, and October 2012. The Board finds that the reports of the October 2012 VA examination are adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability 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). Further, the Veteran has not alleged, nor does the record show, that his service-connected migraine headaches have worsened in severity since the most recent examination. As such, a new examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Moreover, in obtaining the October 2012 VA compensation examination and relevant treatment records, the Board is satisfied that there has been compliance with its August 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran has been afforded a hearing before a Veterans Law Judge at which he presented oral argument in support of his claim for an increased rating for his low back disorder. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ (and the Veteran's representative) asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Board may proceed to the merits of his claim. II. Analysis The Veteran contends that he is entitled to a higher initial disability rating for his degenerative changes of the lumbar spine, currently rated at 20 percent. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35 (1993). Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected back disorders. A lumbar spine disability may be rated pursuant to the general rating formula for diseases and injuries of the spine set forth in DCs 5235-5242. The Veteran's current rating is 20 percent under DC 5242. Under the general rating formula, a 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 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. 38 C.F.R. § 4.71a, Note 2. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, DC 5242. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure," for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). 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). The Court has 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. Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes. 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. IVDS is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with rating of all other disabilities, whichever method results in the higher rating. The Veteran's VA treatment records show his continuous complaints of pain and treatment for his service-connected lumbar disability. Additionally, these records support the findings of the VA examiners, as discussed below, to the extent the Veteran does not suffer from any associated bowel or bladder problems. There are no objective range of motion findings in these treatment records. The Veteran was provided a general VA compensation examination in June 2005 in connection with his claim for service connection for the low back disability. During the examination, it was noted the Veteran complained of pain in his right lower back, radiating to the posterior right thigh, not past the knee. The Veteran had been prescribed a brace but was not using it. He did not indicate any weakness or loss of bowel or bladder control. Upon objective physical examination, the examiner noted a slightly gait, with mild tenderness, but no muscle spasms. Range of motion findings revealed flexion to 70 degrees; extension to 20 degrees; bilateral lateral extension to 30 degrees; and, bilateral rotation to 30 degrees. The examiner indicated there was pain at the endpoints of each movement, but there was no change in the range of motion or increase in pain after five repetitions. The examiner noted the neurological examination of the upper and lower extremities was unremarkable for deep tendon reflex, motor, or sensory abnormalities. The examiner consequently diagnosed degenerative changes of the lumbar spine. There was no indication of incapacitating episodes. In July 2009, the Veteran underwent an additional VA examination, to again reassess the severity of his disability. At the outset of the examination, the Veteran complained of constant pain in the low back, but denied any radiating pain to the legs. He also denied any stiffness, numbness, and loss of bladder or bowl control. The Veteran reported that he sometimes used a cane to walk. Upon physical examination, the examiner reported no evidence of radiating pain, muscle spasms, tenderness, or ankylosis. Further, both the right and left straight leg tests were negative. Range of motion findings revealed flexion to 60 degrees; extension to 30 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally. The examiner stated there was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner also stated there was no evidence of permanent root involvement. Finally, motor and sensory functions were within normal limits. The examiner specifically concluded there was no diagnosis of sciatica. In the February 2011 VA examination, the Veteran reported stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. He also stated he has difficulty walking because of pain. The Veteran described the pain as constant and travelling down his legs. He denied any bowel or bladder problems, but did state he suffered from erectile dysfunction as a result of his low back disability. Range of motion findings revealed flexion to 50 degrees; extension to 15 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 20 degrees, bilaterally. The examiner stated there was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner also found the Veteran's penis was normal, with no evidence of deformity, masses, or tenderness. Finally, as for neurological testing, the examiner again determined that the sensory and motor functions were normal, with no permanent root involvement. On April 20, 2012, the Veteran testified at a videoconference hearing. During the hearing, the Veteran reported increased pain in his lower back, especially during flare-ups. As a result, the Board determined that a new VA examination to reassess the severity of his low back disability was required. In October 2012, in compliance with the Board's August 2012 remand directives, the Veteran was scheduled for this VA examination. The Veteran reported radiation and numbness in his legs when he walks a 1/4 mile or more. The Veteran also denied any bowel or bladder incontinence, as well as erectile dysfunction, except during the "severe bed rest time." Range of motion findings revealed flexion to 50 degrees, with pain beginning at 30 degrees; extension to 20 degrees, with pain beginning at 10 degrees; lateral flexion to 15 degrees, bilaterally, with pain at the endpoint; and, lateral rotation to 20 degrees, bilaterally, with pain at the endpoint. The examiner stated there was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner did find that there was functional impairment of the Veteran's low back due to excess fatigability and pain on movement. Additionally, there was pain to palpation and muscle spasms noted. As for neurological testing, this examiner again determined that the sensory and motor functions were normal. Further, the examiner determined there were moderate intermittent pain and numbness in the right lower extremity, and mild intermittent pain and numbness in the left lower extremity. The examiner diagnosed the Veteran with radiculopathy with sciatica involvement, with an overall severity of moderate for the right lower extremity and mild for the left lower extremity. The examiner determined there were no additional neurological abnormalities such as bowel or bladder problems. Finally, the examiner confirmed a diagnosis of erectile dysfunction, but stated that it was less likely as not attributable to the Veteran's low back disability because there is no evidence of erectile dysfunction due to neurological complications. Prior to April 20, 2012, the preponderance of the evidence does not show symptoms warranting a rating in excess of 20 percent for the low back disability. Specifically, the evidence as discussed above does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). He also does not present with favorable ankylosis of the entire thoracolumbar spine. This is evidenced by the range of motion findings in his several VA examinations, dated in June 2005, July 2009, and February 2011. These examinations showed that, at most, the Veteran's forward flexion was limited to 50 degrees. However, after resolving all doubt in favor of the Veteran, the Board finds that effective April 20, 2012, the date of the Veteran's videoconference hearing, his low back disability more nearly approximates a 40 percent rating. The Veteran's complaints of increased pain were confirmed by the October 2012 VA examiner, who noted that flexion was to 50 degrees, but with painful motion beginning at 30 degrees. Thus, with resolution of reasonable doubt in the Veteran's favor, the Board will assign a 40 percent evaluation effective April 20, 2012. However, an evaluation in excess of 40 percent since April 20, 2012, is not warranted as there is no objective evidence supporting an evaluation of 50 percent even considering his complaints of pain and functional loss. The evidence does not show that there was unfavorable ankylosis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5242 (2012). In reaching these determinations, the Board has also considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 (2012) and 4.45 (2012). See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran has consistently complained of low back pain and other associated symptoms, which were noted during his VA examinations. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath, 1 Vet. App. at 592 (1991). Pursuant to 38 C.F.R. § 4.59 (2012), painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). While the Veteran has consistently reported pain during his several VA examinations dated in June 2005, July 2009, February 2011, and October 2012, these VA examiner specifically determined that there was no additional limitation of motion as a result of pain in excess of his 20 and 40 percent ratings. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2012). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. There is also no indication that the Veteran has favorable ankylosis of the lumbar spine. Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Burton, the Court found the Board had failed to address painful motion and the applicability of 38 C.F.R. §4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair. Id. But, as stated, the multiple VA examiners determined that the Veteran's pain did not reveal additional functional impairment, including additional limitation of motion, on account of his pain, etc, that was not already contemplated by the range of motion measurements set forth in the reports. Thus, a higher rating is not warranted, even with consideration of painful motion and other factors. The Board has also considered whether the Veteran's service-connected lumbar spine disability has resulted in incapacitating episodes and the duration of any such episodes as described under Diagnostic Code 5243. The Veteran's VA treatment records fail to show that he has had incapacitating episodes due to his lumbar spine disorder, which required bed rest prescribed by a physician. The Board also observes that the July 2009 and February 2011 VA examiners found the Veteran did not have IVDS. However, the October 2012 VA examiner did find that the Veteran has IVDS, but he did not have any incapacitating episodes in the past 12 months. That is, no incapacitating episode as defined by VA has been shown. Therefore, a higher evaluation is also not assignable under Diagnostic Code 5243. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. DC 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2012). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The Board notes that in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. As noted above, in the February 2011 VA examination, the Veteran reported he has difficulty walking because of pain. The Veteran described the pain as constant and travelling down his legs. Based on the Veteran's reports of pain travelling down his legs, the Board finds that he is entitled to separate 10 percent disability ratings for mild radiculopathy of the right and left lower extremities, effective from February 21, 2011, pursuant to Diagnostic Code 8520 for mild incomplete paralysis of the sciatic nerve. Prior to that time, however, the medical and lay evidence shows that he had no lower extremity impairment related to his back disability. Indeed, the Veteran denied having lower extremity impairment. In the subsequent October 2012 VA examination, the examiner specifically provided a diagnosis of mild radiculopathy of the left lower extremity and moderate radiculopathy of the left lower extremity. Consequently, as it pertains to only the right lower extremity, the Board finds that a 20 percent evaluation is warranted for moderate radiculopathy of the right lower extremity, effective from October 10, 2012. However, the next higher 20 percent evaluation is not warranted under Diagnostic Code 8520 for the left lower extremity radiculopathy as the Veteran's neurological symptoms are not shown to be moderate in degree. See 38 C.F.R. § 4.124a. Similarly, a 40 percent evaluation is not warranted for the right or the left lower extremities since his neurological symptoms are not shown to be moderately severe in degree. The 60 percent evaluation is not warranted for either the left or the right lower extremity radiculopathy as the Veteran's neurological symptoms are not shown to cause severe incomplete paralysis with marked muscle atrophy. There is also no evidence of complete paralysis of the sciatic nerve to warrant assigning an 80 percent disability rating for either lower extremity. Further, no other neurologic abnormalities have been associated with the Veteran's low back disorder (other than of the right and left lower extremities), so additional ratings are not warranted. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his low back disability and associated right and left leg lower extremity radiculopathy. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his back, and numbness and tingling down his legs. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to the presence of pain and the severity of such during his numerous VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight where applicable. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's lumbar spine disorder and left and right leg radiculopathy, as described above, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. His complaints of chronic pain associated with the lumbar spine disability and the resultant neurological impairments are contemplated by the schedular rating criteria of DCs 5242 and 8520. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. In sum, the preponderance of the evidence is against finding that the Veteran's lumbar spine disability warrants a disability rating higher than 20 percent prior to April 20, 2012. However, the evidence does support assigning a 40 percent rating, effective from April 20, 2012, for the low back disability. Additionally, the Veteran is entitled to separate ratings of 10 and 20 percent for his left and right lower extremity radiculopathy, respectively. In making these determinations, the Board has considered the provisions of the benefit-of-the-doubt doctrine, but as the preponderance of the evidence is against any higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER A disability rating in excess of 20 percent for degenerative changes of the lumbar spine prior to April 20, 2012, is denied. Effective April 20, 2012, an evaluation of 40 percent for degenerative changes of the lumbar spine, but no higher, is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Effective February 21, 2011 to October 9, 2012, entitlement to a separate 10 percent disability rating, and not higher, for radiculopathy of the right lower extremity is granted, subject to the statutes and regulations governing the payment of VA compensation. Effective October 10, 2012, an evaluation of 20 percent for radiculopathy of the right lower extremity is granted, subject to the statutes and regulations governing the payment of VA compensation. Effective February 21, 2011, entitlement to a separate 10 percent disability rating, and not higher, for radiculopathy of the left lower extremity is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs