Citation Nr: 1327458 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 04-38 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 20 percent for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had more than nine years of active duty service, including from April 1989 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in July 2007, June 2010, and August 2012. As noted in the prior August 2012 Remand, the issue of entitlement to service connection for a mixed demyelinating/axonal degeneration sensorimotor nerve disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to December 1, 2011, the Veteran exhibited no more than moderate disability of the lumbar spine as shown by his limitation of motion. 2. As of December 1, 2011, the Veteran exhibited flexion restricted to 30 degrees of the thoracolumbar spine, but did not exhibit ankylosis. 3. During the entire appeal period, the Veteran had sciatic impairment to the left lower extremity that was mild to moderate in degree, but not moderately severe or worse. CONCLUSIONS OF LAW 1. Prior to December 1, 2011, the criteria for a separate 20 percent rating for limitation of motion of the lumbar spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5292 (2002). 2. As of December 1, 2011, the criteria for a separate 30 percent rating for limitation of flexion of the thoracolumbar spine have been met. 38 U.S.C.A. § 1155 (West 2002 &Supp. 2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5235-5243 (2012). 3. The criteria for a rating in excess of 20 percent for impairment of the sciatic nerve to the left lower extremity are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Nonetheless, the Board notes that the Veteran was properly informed of the diagnostic codes that the disability may be rated under, and was notified that he may submit evidence regarding the impact of his disability on his employment and daily life. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in June 2003, August 2007, and August 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available, including VA, private and Social Security Administration records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The December 2012 VA examination report, as supported by earlier VA examinations and the other medical evidence of record, is thorough and supported by the record. This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining this additional medical examination, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Historically, in an August 1994 rating decision, the Veteran was granted service connection for a lumbosacral spine condition, characterized as sciatic nerve syndrome, and a 10 percent rating was assigned under Diagnostic Code 8520 (sciatic nerve impairment). Thereafter, a 1995 VA examination indicated a diagnosis of residual back injury with low back pain and left paravertebral muscle tautness with sciatica-like syndrome on the left. An October 1995 rating decision, denied an increased rating for sciatic nerve syndrome. The Veteran's rating was thereafter increased to 20 percent effective November 2000. In January 2003, a claim for an increased rating was received from the Veteran. Subsequent VA medical records documented complaints of low back pain. In February 2003, the Veteran was evaluated. The examiner noted that the Veteran had chronic pain syndrome as well as sciatica. Subsequent VA examiners continued to note these diagnoses. On a June 2004 examination, the Veteran was able to sit, stand, walk around, occasionally stoop and change position. The Veteran stated that his low back and left sciatica condition did not affect his ability to perform his job. However, thereafter, the Veteran continued to complain of low back pain and left leg numbness. In September 2005, the Veteran was afforded a VA examination. At that time, he complained of having chronic low back pain. It was noted that his past MRI and nerve studies were normal. However, he had pain that radiated down his left leg for which he took narcotics for relief. He denied bowel, bladder, and erectile dysfunction. Physical examination revealed that the Veteran's gait was upright and his posture was steady. He was able to ambulate at a brisk rate and without any evidence of limping or pain. He moved freely and was able to bend at the waist and to remove his shoes and socks without discomfort. He was also able to get off the exam table from a supine position without additional assistance or evidence of pain or dysfunction. The Veteran had no palpable paraspinal muscle tenderness, no trigger points, and no spasms. He was able to forward flex to 70 degrees and then to 75 and 80 degrees with repeated motion. There were no signs of fatigability with repeated motion. Lateral flexion was zero to 25 degrees bilaterally with no fatigability. Rotation was also to 25 degrees bilaterally and with no fatigability. Extension was to 30 degrees with no fatigability. The Veteran was able to repeat the motions. At the end of each of the ranges of motion, the Veteran reported pain, but there were no outward signs of pain. He exhibited negative straight leg raising on the right, but reported pain on the left. He had intact vibratory sensation to bilateral upper and lower extremities. Deep tendon reflexes were brisk and 2+ and equal to bilateral brachioradialis, knee jerks, and ankle jerks. The diagnoses were lumbosacral pain without objective findings as all past x-rays, MRI, and nerve testing were normal. There was no evidence of underlying degenerative disease. X-rays revealed probably transitional type lumbar vertebral body. The Veteran was granted disability benefits from the Social Security Administration, but they were based on psychiatric impairment. Likewise an October 2005 rating decision rated entitlement to a total disability rating based on individual unemployability, but it was due primarily to psychiatric impairment (noted to be permanent and total). The Veteran continued to complain of low back pain as well as stiffness and sensory loss on the left side of his body. An October 2006 record noted that myopathy could not be ruled out at that point. An electromyography (EMG) in November 2006 revealed abnormal findings due to diffuse sensorimotor polyneuropathy. There was no evidence of left lumbosacral radiculopathy or myopathy. It was noted that the prior nerve study had been normal, but this study revealed evidence of generalized sensorimotor polyneuropathy which had various etiologies. An April 2007 evaluation indicated that the Veteran did not have an inflammatory myopathy. In July 2007, the Veteran underwent a computerized tomography of the lumbosacral spine which revealed no evidence of spinal stenosis or disc herniation. There was a sclerotic area in the left side of the sacrum superiorly, raising the possibility of fibrous dysplasia or Paget's disease. An October 2007 neurological evaluation noted that the Veteran had a history of low back pain since he fell in the military. It was noted that a March 2007 bone scan was normal. In November 2007, the Veteran indicated that he had problems lifting his left leg which caused pain to shoot down to his left foot in addition to causing back pain. His left foot would also become numb and tingling for a few minutes. A June 2008 muscle biopsy revealed some neuropathy findings; there was no evidence of myopathy. It was noted that the Veteran's pain appeared to be neuropathic in nature on a March 2009 evaluation. In September 2009, the Veteran was afforded a VA examination. At that time, the Veteran reported having a long history of low back pain and left lower extremity impairment. He denied bowel, and bladder dysfunction. He also related that he had numbness, paresthesia, leg/foot weakness, a history of falls, fatigue, decreased motion, stiffness, weakness, muscle spasms, and pain. He also indicated that he had flare-ups and used a cane. Physical examination revealed that the Veteran's posture and head position were normal. There was symmetry of appearance. His gait was slightly antalgic. He had lumbar lordosis, but no other spinal curvatures or ankylosis. There was pain with motion, but no muscle spasms. Motor examination was normal. There was decreased sensation to pain and light pinprick. All reflexes were 2+. Forward flexion of the thoracolumbar spine was to 80 degrees, extension was to 22 degrees, left lateral flexion was to 18 degrees, right lateral flexion was to 22 degrees, and left and right lateral rotation was to 30 degrees. There was pain on motion and with repetition, but no additional loss of pain. Lasegue's sign was negative. There were no vertebral fractures. There was mild to severe impairment with usual daily activities. The diagnosis was mixed demyelinating/axonal degeneration sensori motor polyneuropathy of unknown cause. The examiner also diagnosed chronic lumbar strain which was at least as likely as not related to the inservice injury. The Veteran's left lower extremity was also evaluated. The Veteran reported having numbness, paresthesias, dysesthesia, pain, and impaired coordination. He also reported tenderness and soreness of the quadriceps and some burning of and tingling of the left lower leg. Sensory examination was normal, but for the left lower extremity which exhibited decreased sensation to pain and light touch. As noted, all reflexes were 2+. There was no muscle atrophy, abnormal muscle toe or bulk, abnormal movements, or dysfunction of any joint. The Veteran walked with a slight limp. The examiner noted that the veteran had hyperesthesia over t he left lateral ankle, left lateral foot, and left quad. The examiner felt that the Veteran's left lower leg impairment was less likely than not related to the lumbar injury. However, the examiner suggested that another opinion be obtained from a new neurologist. In December 2011, the Veteran was afforded another VA examination. Range of motion studies of the thoracolumbar examination revealed forward flexion to 70 degrees or 30 degrees with pain; extension to 15 degrees or to 10 degrees with pain; right and left lateral flexion to 10 degrees; and right and left lateral rotation was to 10 degrees. The Veteran was able to perform repetitive testing. Movements were primarily the same, but extension was reduced to 10 degrees. The Veteran was indicated to have less movement than normal, excess fatigability, and pain on movement of his spine. There was diffuse paraspinous tenderness at L2-5 bilaterally. There was no muscle spasm. Strength was normal There was no muscle atrophy. Reflexes were 2+. Sensory examination revealed that sensation to light touch was decreased bilaterally on the anterior thigh, knee, lower leg, and ankle. Foot and toe sensation was normal. Straight leg raising was negative. There was no radicular pain or radiculopathy. The nerve impairment was mild. There were no other neurological abnormalities including of the bowel or bladder. It was noted that the Veteran occasionally used a cane. The neurological examination further noted that the Veteran had mild paresthesias and/or dyesthesia of the left lower extremity with moderate numbness and severe pain. Muscle strength was normal and there was no muscle atrophy. Reflexes were 2+. All nerves, including the sciatic nerve, were noted to be normal, but for the musculocutaneous nerve (superficial peroneal nerve) which exhibited incomplete paralysis bilaterally with mild impairment. X-rays of the low back revealed minimal mild discogenic disease of the lower lumbar spine. The Veteran's claim was remanded for further clarification of this examination regarding whether the Veteran has a low back disorder manifested by neurological symptoms. The Board further notes that there appear to be discrepancies with the December 2011 examination. For instance, the examiner identified that the musculocutaneous nerve (superficial peroneal nerve) was involved, which is wholly inconsistent with the rest of the record, including the clarifying examination as set forth below. As such, the Board finds that this portion of the December 2011 examination is diminished in value. Nevertheless, there is a subsequent examination which adequately addresses this matter. In March 2012, it was noted that the Veteran had sciatic nerve and pain from nerve and muscle biopsy. The Veteran stated that his back problem with sciatic nerve pain started with a fall down the stairs in Okinawa in 1992. He landed on his back directly hitting step. He had an x-ray done and a questionable old or new fracture in his pelvis. After the fall, he could not keep up his runs, he was very physically fit before the fall. When he walks it feels like a pulling, ripping up from his calf, thigh and gluteus, left side. It was noted that the Veteran walked with an altered gait (walks with a limp) and he had paresthesias on his top left foot. He rated his back pain as 10 out of 10, on a scale of 1 to 10 with 10 being worse. He also stated that it radiated down his left buttock, mid thigh and down to calf. He described it as being like "fire and ripping." He tried TENS therapy and it did not work. Also, methadone was not effective. On physical examination, the Veteran walked with a limp and with an assistive device, a cane. Heel and straight line walking were not intact. Romberg was negative. His back was tight at L2-L5, and was painful to deep pressure. On straight leg lift: there was pain in the left leg and back. Reflexes were 2+ throughout. In April 2012, it was noted that the Veteran had been experiencing pain in the lower back, and sciatic pain on the left side going down to the foot. Currently he was taking 2.5 mg of methadone 3 times per day and methocarbamol 1,500 mg, also 3 times per day, in addition to valium 10 mg 1-4 times per day. Massage therapy was recommended for the sciatic pain. On his December 2012 examination, it was noted that when the Veteran experienced flare-ups, he could barely walk. Range of motion testing revealed forward flexion to 70 degrees, with pain at 60 degrees; extension to 15 degrees with pain at that point, right lateral flexion to 25 degrees with pain at 20 degrees; left lateral flexion to 20 degrees with pain at 15 degrees; right and left lateral rotation to 20 degrees each with pain at that point. The Veteran was able to perform repetitive testing and his range of motion did not change. The Veteran's back caused functional loss in that movement was less than normal, there was pain on movement, there was disturbance of locomotion, there was interference with sitting, standing, weightbearing, and stooping. The Veteran also exhibited guarding and/or muscle spasms. His strength was normal. Reflexes were 2+. His sensory examination revealed decreased sensation to light touch in the left thigh/knee, lower leg/ankle, and foot/toes. Straight leg raising was negative. There was radicular pain and signs of radiculopathy with moderate intermittent pain of the left lower extremity, mild paresthesias and/or dysesthesia of the left lower extremity, and mild numbness of the left lower extremity. The examiner noted that the nerve involved was the sciatic nerve with moderate impairment on the left side only. The examiner stated that the Veteran did not have intervertebral disc syndrome and/or incapacitating episodes. He used a cane for walking. The examiner indicated that the veteran had arthritis, but no vertebral fracture. X-rays revealed no evidence of spinal stenosis or disc herniation. Past imaging studies were reviewed. The examiner opined that the Veteran's had a lower back condition which was manifest by objective neurological signs. The examiner explained that the Veteran's original injury involved his L-S1 joint which explained the disparate levels of pain versus the lumbar imagery. His current neurological signs were consistent with a dermatome distribution of a spinal nerve radiculopathy. As noted above, the Veteran was originally service-connected for a low back condition which was manifested by neurological symptoms, with a rating assigned pertaining to sciatica under Diagnostic Code 8520. During the entire pendency of this appeal, the Veteran has demonstrated neurological symptoms relating to his left lower extremity (sciatica) as well as orthopedic symptoms of the lumbar spine. As such, the Board finds that a rating based on sciatica as well as a rating based on orthopedic impairment is warranted. This action does not constitute pyramiding as orthopedic and neurological symptoms manifest and cause different impairment. The Board recognizes that there has been discrepancy over whether the Veteran has sciatica, radicular symptoms, or radiculopathy. This was the reason that the claim was last remanded. However, the December 2012 examination resolved that the Veteran does indeed have impairment in his left lower extremity, clarified as affecting the sciatica nerve, which is consistent with the original low back injury. Likewise, it was also clarified that the Veteran has low back symptoms apart from the sciatica. Those are also service-connected as part of the low back injury residuals. Turning to the rating of the Veteran's disabilities, disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 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, 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 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). The Board observes that the United States Court of Appeals for Veterans Claims (Court) noted that when rating spine disabilities under the revised criteria (per below), 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 Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran is certainly competent to report pain, stiffness, fatigability, and other similar symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board notes that the schedular criteria for rating the spine have been amended during the pendency of the Veteran's appeal. Historically, the rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). However, as discussed below, the Veteran does not have intervertebral disc syndrome. The other rating criteria, as set forth below, which was already in effect, remained the same. Effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). More specifically, effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only, but continued to evaluate that disease under Diagnostic Code 5293. See 67 Fed. Reg. 54, 345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine. This update included a renumbering of the diagnostic codes pertinent to back ratings. According to that renumbering, Diagnostic Code 5237 now governs ratings of lumbosacral strain, Diagnostic Code 5239 governs ratings of spondylolisthesis or segmental instability, and Diagnostic Code 5243 governs ratings of intervertebral disc syndrome. See 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012)). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3- 2000 (Apr. 10, 2000). As such, the Board will assess the severity of the Veteran's service-connected low back disability under both the former, and revised criteria pertaining to ratings of the spine. In addition, the Board will consider the ratings for sciatica of the left lower extremity under Diagnostic Code 8520. That code has not changed and will be addressed last. Former Criteria Under Diagnostic Code 5292 (2002), limitation of motion of the lumbar spine was rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 40 percent disabling when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The 40 percent rating was the maximum rating under that code. Under Diagnostic Code 5295 (2002) a 10 percent rating was assigned for lumbosacral strain with characteristic pain on motion. If there was lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position, a 20 percent evaluation was in order. Finally, a maximum schedular rating of 40 percent was awarded when lumbosacral strain is severe, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 10 percent rating was provided for mild intervertebral disc syndrome with recurring attacks; a 20 percent rating was provided for moderate intervertebral disc syndrome with recurring attacks; a 40 percent rating was provided for severe intervertebral disc syndrome with recurring attacks with intermittent relief; and a 60 percent rating was provided for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under Diagnostic Code 5285 (2002), ratings were provided for a demonstrable deformity of a vertebral body. Diagnostic Codes 5286 and 5289 (2002) provided ratings for complete bony fixation (ankylosis) of the spine. As to rating the veteran under the criteria for ankylosis, it is noted that ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999). Here, the evidence showed that the veteran retains significant motion of the spine. Therefore, rating premised on ankylosis is not warranted. The Veteran does not have as related to his service-connected low back condition, intervertebral disc syndrome, a demonstrable deformity of a vertebral body, or ankylosis of the spine. So, ratings on any of those bases is not warranted. When viewing the Veteran's overall limitation of motion during the entire appeal period, taking into consideration the DeLuca factors per Cullen, the Veteran has consistently demonstrated moderate limitation of motion, particularly on lateral movements and extension. Under Diagnostic Code 5292 (2002), limitation of motion of the lumbar spine is rated as 20 percent disabling when moderate. On VA examination in September 2005, it was noted that he had 70 degrees of forward flexion; lateral flexion was 25 degrees; and rotation was 30 degrees. On VA examination in September 2009, forward flexion was 80 degrees; extension was 22 degrees; left and right lateral flexion were 18 and 22 degrees, respectively; and lateral rotation was 30 degrees. It was generally noted he had pain on motion. In June 2004, it was noted that his low back disability did not impact how he performed his job. In September 2005, he indicated that he was able to ambulate at a brisk rate. His gait was upright and his posture was steady. He moved freely and was able to remove his shoes and socks without discomfort. In September 2009, he complained of decreased range of motion with pain. It was concluded he had mild to severe impairment in his usual activities. In sum, given the assertions of functional loss and consistent range of motion studies which are, on average, generally moderate, no more than a 20 percent rating is warranted. A higher rating is not in order as the Veteran did not consistently demonstrate severe limitation of motion nor was his motion functionally limited to a severe degree by the DeLuca factors. A higher rating under Diagnostic Code 5295 (2002) also is not in order as the Veteran did not exhibit severe lumbosacral strain. Pursuant to September 23, 2002 changes The revised, or "new," criteria pertaining to ratings for intervertebral disc syndrome, under Diagnostic Code 5293 were amended effective from September 23, 2002. The revisions were designed to accommodate acute exacerbations or flare-ups of disc disease. As such, the revised regulations provided that intervertebral disc syndrome (preoperatively or postoperatively) should be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The revised rating schedule for rating intervertebral disc syndrome is as follows: A 10 percent evaluation is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is assigned with incapacitating episodes of having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under DC 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. The Veteran does not have intervertebral disc syndrome, so these changes do not affect his rating. The Board must consider both the criteria in effect prior to September 23, 2002, and the criteria which came into effect as of September 23, 2002. Pursuant to September 26, 2003 changes The next revision to the Rating Schedule governing the rating of spinal disabilities was effective September 26, 2003. At that time, VA amended its Schedule for Rating Disabilities, 38 C.F.R. Part 4, to institute a general rating formula for evaluating diseases and injuries of the spine, including lumbosacral strain under Diagnostic Code 5237, spinal stenosis under Diagnostic Code 5238, degenerative arthritis of the spine under Diagnostic Code 5242, and intervertebral disc syndrome under Diagnostic Code 5243. Under the revised criteria, lumbosacral strain will 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 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2012). Under the General Rating Formula as applicable to the Veteran's back disability, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 30 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, effective September 26, 2003. The revised rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3) states that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors note the result of the disease or injury of the spine, the range of motion of the spine in 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) indicates that each range of motion measurement should be rounded to the nearest 5. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of the 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 (zero degrees) always represents favorable ankylosis. Note (6) provides that VA should separately evaluate disability of the thoracolumbar and cervical spine segments, except whether there is unfavorable ankylosis of both segments, which will be rated as a single disability. In order for the Veteran to receive a higher rating based on limitation of motion under the revised code, the Veteran would need to demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The December 1, 2011 examination revealed that flexion was limited to 30 degrees when considering pain (a DeLuca factor). Thus, as of December 1, 2011, the Veteran met the criteria for a 30 percent rating based on his orthopedic impairment of the spine. Although an apparent improvement in range of motion was noted in December 2012 on VA examination, the Board will give the Veteran the benefit of the doubt that any improvement was not representative of his disability picture. A higher rating is not warranted under the new criteria because the Veteran does not have ankylosis of the spine. Turning to his neurological impairment involving the left lower extremity, it has been established that the Veteran has sciatica. 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. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. In this case, the Veteran's sciatica has been consistently deemed to be mild to moderate in degree. Specifically, his left lower extremity has mild numbness and paresthesias or dyesthesia, but has moderate pain. Since the Veteran has never demonstrated moderately severe or severe incomplete paralysis, a higher rating based on his sciatica is not warranted for any portion of the appeal period. The Veteran also does not have any other related neurological impairment, such as bowel or bladder dysfunction. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher rating of 20 percent for limitation of motion of the lumbar spine under Diagnostic Code 5292 (2002), prior to December 1, 2011; and a rating of 30 percent for limitation of flexion of the thoracolumbar spine, as of December 1, 2011. The preponderance of the evidence is against a rating in excess of 20 percent for sciatic impairment to the left lower extremity. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court 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 low back and left lower extremity disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Veteran has not had periods of hospitalization. Although he is unemployable, that was determined to be due to other disability. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Prior to December 1, 2011, entitlement to a separate 20 percent rating for limitation of motion of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. As of December 1, 2011, entitlement to a separate 30 percent rating for limitation of flexion of the thoracolumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 20 percent for sciatic impairment to the left lower extremity is denied. ________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs