Citation Nr: 1327918 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-38 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the residuals of gallbladder surgery, hiatal hernia, and gastroesophageal reflux disease (GERD). 2. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbosacral spine with mechanical low back pain prior to March 20, 2013, and to an evaluation in excess of 40 percent from that date. 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity associated with degenerative arthritis of the lumbosacral spine with mechanical low back pain. REPRESENTATION Appellant represented by: John H. Morgan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2008, August 2009 and February 2010 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The claims on appeal were Remanded by the Board in September 2011. By a rating decision issued in May 2008, the Veteran's claim for an increased (compensable) evaluation for the residuals of gallbladder surgery, hiatal hernia, and GERD, was denied, and a rating in excess of 20 percent for degenerative arthritis of the lumbosacral spine with mechanical low back pain, following the termination of a temporary total evaluation, was denied. Later rating decisions increased the evaluation for the Veteran's gastrointestinal (GI) disability to 10 percent, and increased the evaluation of lumbar disability to 40 percent, from March 20, 2013, but the claims for increased ratings remain on appeal. In August 2009, the Veteran was awarded service connection for radiculopathy, right lower extremity, and a 20 percent evaluation was assigned, effective from November 2, 2007. The Veteran has appealed the assigned initial rating. In May 2008, service connection for radiculopathy of the right and left lower extremities was denied. Following the grant of service connection for right lower extremity radiculopathy, the claim was reacharacterized as a claim for service connection for neuropathy or radiculopathy of the left lower extremity, to include as secondary to degenerative arthritis of the lumbosacral spine with mechanical low back pain, and that claim was Remanded by the Board in September 2011. By a rating decision prepared in November 2012 and issued to the Veteran in January 2013, service connection for left lower extremity radiculopathy was granted, and an initial 20 percent rating was assigned. The claims files and electronic records (Virtual VA and VA's Appeals Control and Locator System (VACOLS)) disclose no evidence that the Veteran has disagreed with any aspect of that grant of service connection; the Board notes that the period in which the Veteran may disagree with that rating decision may not yet have expired. No issue related to the claim for service connection for left lower extremity radiculopathy is before the Board on appeal at this time. After the Board's September 2011 Remand was issued, the Veteran's claim for a total disability rating based on individual unemployability (TDIU) was granted, effective from January 2008. The claims files and electronic records (Virtual VA and VA's Appeals Control and Locator System (VACOLS)) disclose no evidence that the Veteran has disagreed with any aspect of that grant of TDIU. No issue related to a claim for TDIU is before the Board on appeal at this time. In February 2011, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. Since May 15, 2008, but not prior to that date, the Veteran's GI disability with GERD has been manifested by persistent recurrent epigastric distress with dysphagia, pyrosis, chest pain, nausea, and "dry heaves" at times, and required surgery in December 2008, which has resulted in permanent inability to absorb iron, but the GI disability is not productive of material weight loss or other symptom combinations productive of severe impairment of health. 2. On March 5, 2008, the Veteran had forward flexion to 50 degrees, with pain throughout the range of motion, and reported no incapacitating episodes, other than the period addressed in a temporary total rating following surgery. 3. The Veteran's lumbar disability is currently manifested by limited range of motion, with forward flexion limited to 30 degrees, further reduced by repetitive motion, standing for more than 10 minutes, or by a flare-up; the Veteran reports no incapacitating episodes, and the medical evidence establishes that no provider has prescribed a period of bedrest. 4. The clinical records do not provide specific range of lumbar spine motion following the March 5, 2008 VA examination until 2013, and reasonable doubt as to when the lumbar range of motion decreased must be resolved in the Veteran's favor. 5. The Veteran's right lower extremity radiculopathy has been manifested by both sensory and objective neurologic manifestations, including chronic pain, numbness, absence of the right ankle deep tendon reflex, and generalized weakness of the right lower extremity, but there is no foot drop, atrophy of any muscle, or objective finding of partial paralysis. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating from 10 percent to 30 percent, but no higher evaluation, for the residuals of gallbladder surgery, hiatal hernia, and GERD have been met from May 15, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). 2. The criteria for an increased disability rating from 20 percent to 40 percent for degenerative arthritis of the lumbosacral spine with mechanical low back pain and intervertebral disc disease are met from March 6, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); §§ 4.1, 4.3, 4.7, 4.40, 4.71a, Diagnostic Codes 5237-5243 (2012). 3. The criteria for an increase in the initial rating from 20 percent to 40 percent for radiculopathy, right lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.123, 4.124, 4.124a, Diagnostic Codes 8521, 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his GI disability, lumbar disability, and right lower extremity radiculopathy should be compensated at higher rates. The Board will address whether VA has met its statutory duties to provide the Veteran with notice and assistance before addressing the legal and factual issues raised on appeal. VA's duties to the claimant VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principe, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Here, the Veteran is challenging one evaluation which is an initial evaluation assigned following the grant of service connection, and is challenging two other evaluations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims held that in cases where service connection has been granted, and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven. Once a claim has been granted, no further action to provide notice under section 5103(a) is required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before the claim for service connection for radiculopathy was granted, that notice is considered legally sufficient, and VA's duty to notify as to that claim has been satisfied. Regarding the two other claims on appeal, VA satisfied its duty to notify by means of a letter dated in November 2008, which notified the Veteran of the types of evidence required to substantiate a claim for an increase. The claims files establish that the Veteran understood the types of evidence required to substantiate the claim. The letter also included notice of the criteria for establishing a rating and an effective date. Thus, the notice to the Veteran included each element required by law. Moreover, the Veteran has been represented by an attorney during the pendency of the appeal. The attorney has not raised any allegation that further notice to the Veteran beyond the assistance that the attorney can provide is required. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. Duty to assist VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The Board observes that service treatment records and post-service private and VA clinical records for the period spanning the pendency of the appeal have been obtained and associated with the claims file. Records have been obtained from the Social Security Administration. The Board has reviewed the Virtual VA electronic information database. The Veteran has not identified any additional private provider who treated his for the disabilities at issue, and has not identified any additional relevant records. The Veteran was afforded VA examinations. As explained in more detail below, to the extent that there is any deficiency in any VA examination, doubt which arises from such deficiency has been resolved in the Veteran's favor. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that an RO Decision Review Officer or an individual who chairs a Veteran's hearing before the Board fulfill two duties: (1) the duty to fully explain the issues, and, (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the issues on appeal were correctly identified during the Veteran's hearing before the Board, and the Veteran's testimony as to symptoms he attributed to the disabilities at issue was elicited at the hearing. See Transcript, February 2011 hearing, 2-27. The duties under 38 C.F.R. § 3.103 have been met. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Claims for increased ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If, however, it is factually ascertainable that an increase in disability occurred within the one year immediately preceding the date of receipt of the claim, then the appellant can receive this earlier effective date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). 1. Claim for rating in excess of 10 percent for GI disability with GERD Disabilities involving the digestive system are evaluated under the regulatory criteria found at 38 C.F.R. §§ 4.110-4.114. The Veteran's service-connected GI disability with GERD has been rated by the RO as 10 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346. A 10 percent rating is warranted where there are two or more of the symptoms listed in the criteria for the 30 percent rating of less severity. A 30 percent evaluation is assigned when there is evidence of persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. A 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Weight loss is a consideration in evaluating digestive system disorders. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. 1. Claim for higher rating for gastrointestinal (GI) disability In January 2007, about a year prior to the Veteran's December 2007 claim for an increased evaluation for his GI disability, his weight was 225 pounds. In October 2010, his weight was 238 pounds; in November 2011, his weight was 244 pounds. At the time of VA examination conducted in 2012, his weight was 245 pounds. The evidence establishes that the Veteran has not manifested weight loss due to GI disability. Laboratory examinations of the Veteran's blood disclosed anemia. Iron-deficiency anemia was the assigned diagnosis, and an iron supplement was prescribed. On VA examination in March 2008, the examiner noted the Veteran's history of hiatal hernia repair in 1994. The examiner described the Veteran's GERD as mild. The Veteran reported little reflux, no nausea or vomiting. The Veteran reported that the Nexium prescribed for his GERD worked to control symptoms well. At an evaluation conducted on May 5, 2008, the Veteran reported abdominal pain. The treating provider determined that there was objective evidence of pain, and questioned whether the Veteran's 1994 "Nissen" might have failed, or whether the Veteran's increased pain was a groin pain. The Veteran was scheduled for EGD to determine the cause of the pain. In July 2008, the Veteran had an episode of "chest pain" while at a VA outpatient appointment. The Veteran's complaints of increased reflux continued thereafter. In October 2008, the Veteran underwent esophagogastroduodenoscopy (EGD). The EGD disclosed esophagitis, a large hiatal hernia with portions of the gastric fundus, cardia, and gastric body in the thoracic cavity. There were antral lesions, thought to be due to use of anti-inflammatory medications. There was an absence of any fundoplication wrap. In December 2008, the Veteran underwent an open Nissen fundoplication with diaphragm repair. Fundoplication is defined as a surgical hiatal hernia repair in which the gastric fundus (upper part) of the stomach is wrapped, or plicated, around the lower end of the esophagus and stitched in place, reinforcing the closing function of the lower esophageal sphincter. The esophageal hiatus is also narrowed down by sutures to prevent or treat concurrent hiatal hernia, in which the fundus slides up through the enlarged esophageal hiatus of the diaphragm. In "Nissen fundoplication," also called a complete fundoplication, the fundus is wrapped completely (360 degrees) around the esophagus. Dorland's Illustrated Medical Dictionary 760 (31st ed. 2007). Outpatient treatment records dated in 2009 and 2010 reflect that the providers continued to monitor the Veteran for abdominal pain, nausea, vomiting, and chest pain; mild symptoms were reported. One provider noted the Veteran's inability to take medications for control of pain because of nausea. In December 2010, the Veteran had an episode of chest pain. Cardiac catheterization and other cardiac diagnostic evaluations were negative. Repeat EGD conducted in January 2011 was negative except for mild gastritis. Other GI diagnostic evaluations were also conducted. In March 2011, the treating provider determined that the Veteran's shortness of breath and tachycardia were due to anemia. The Veteran's anemia was attributed to the known diagnosis of hemorrhoids. The Veteran underwent hemorrhoidectomy in August 2011. However, his anemia continued, and he continued to require treatment. At his 2011 hearing before the Board, the Veteran testified that certain medications, especially medications used to control back pain, were causing nausea and "dry heaves." The Veteran testified that the GI surgery made him unable to throw up but he was having dry heaves so powerful at times that " [I] fell out of my chair with dry heaving." He reported that he had to take medication to prevent muscle spasm related to eating, and that, without this medication, he had a bloated feeling like "a rumbling" or "roaring" in his stomach. On VA examination in November 2012, the examiner noted the Veteran's history of hiatal hernia and fundal plication in 1994, and second fundal plication in December 2008. The examiner noted the Veteran's 2010 chest pain, which, after cardiac catherization, was found to be of GI etiology. The Veteran reported persistently recurrent epigastric distress, dysphagia, sleep disturbance due to esophageal reflux, mild nausea, and substernal arm or shoulder pain. The Veteran reported that he had to be careful what he would eat, because some things would stick more than others. He reported that rice, pasta, bread "gets stuck in my throat and I choke." The examiner noted that the Veteran was taking medication to decrease muscle spasms in the stomach. The examiner opined that there was "mild" esophageal stricture. The examiner noted that the Veteran continued to be treated for anemia. The examiner also opined that the Veteran's GI disability would preclude manual labor that required stooping or squatting, but would be able to perform light physical activity or sedentary work February 2013 VA outpatient treatment records reflect that the Veteran's providers concluded that his GI surgeries have resulted in inability to absorb iron. The Veteran was being treated with injections of iron dextran for the anemia. Analysis a. Symptoms at time of March 2008 VA examination The examiner who conducted the March 2008 VA examination concluded that the Veteran's GI disability was mild. That conclusion is consistent with the clinical treatment the Veteran reported. The Veteran's reports of persistent symptoms which required ongoing medication but were well-controlled with medication, and the medical findings on objective examination, are consistent with the 10 percent evaluation assigned for GI disability present at the time of the March 2008 VA examination. In particular, the Veteran did not report heartburn, abdominal pain, or chest pain in his December 2007 claim for an increased rating for GI disability, or at the time of the March 2008 VA examination. The Veteran reported that he was required to take Nexium daily to control his symptoms, and reported that the medication provided relief from the symptoms. There is no medical evidence that the Veteran sought treatment for or was found to have any impairment of his health due to GI disability at the time of the March 2008 VA examination or in the year prior to the claim for an increased rating for GI disability. The evidence that the Veteran's treatment consisted of medication, and that no diagnostic examinations were conducted during this period, and that the Veteran himself reported that the medication controlled his symptoms, is evidence that the GI disability was no productive of "considerable impairment of health," so as to meet the criteria for a 30 percent evaluation. Two or more symptoms of GI disability were present, although at a mild level, so as to meet the criteria for a 10 percent schedular evaluation. The preponderance of the evidence is again an evaluation in excess of 10 percent during this period. b. Symptoms from May 15, 2008 It is factually ascertainable that, beginning May 15, 2008, the Veteran had increased symptoms of GI disability, and that a second surgical treatment for hiatal hernia was required. Following that surgical treatment, the Veteran's symptoms decreased, but did not decrease to the level described at the time of the March 2008 VA examination. The fact that the Veteran required hospitalization for chest pain in December 2010, and that GI disability was found to be the cause of that chest pain, establishes that the Veteran's GI disability continued to present considerable, although not severe, impairment of health. See also DC 7304 (ulcer, gastric). The Veteran continued to require treatment for anemia. The Veteran's anemia remained of sufficient concern that he underwent hemorrhoidectomy in late 2011 to decrease blood loss which was attributed to hemorrhoids. This evidence establishes that the Veteran's symptom of anemia, together with other symptoms attributed to GI disability, were of considerable, but not severe impairment of health. The Board notes that, once the cause of the Veteran's symptoms of chest pain, shortness of breath, and tachycardia were found, the ongoing treatment of anemia was through medication. The hemorrhoidectomy scheduled in August 2011 which was intended to reduce the Veteran's anemia was not performed on an urgent basis. Terms such as "severe," "considerable," and "of lesser severity" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to determine the appropriate rating for the level of severity. 38 C.F.R. § 4.6. As the Veteran's anemia has been determined to be due to his GI surgeries, and he continues to manifest other symptoms of GI disability, the Board finds that a 30 percent evaluation is warranted, from the date of the evaluation on May 15, 2008, which discloses that the Veteran's symptoms were increasing. The Board finds that the Veteran's symptoms were not so severe as to warrant a schedular evaluation in excess of 30 percent for GI disability at any time during the pendency of this claim. The Board notes that the Veteran did undergo GI surgery. He did not request a total (100) percent temporary evaluation for the period of time when he had the surgery, as a 100 percent, total evaluation was in effect due to individual unemployability. Prior to the surgery, the Veteran did not have severe impairment of health due to the GI disability, although the symptoms had increased in severity. In particular, the Board notes that December 2008 GI surgery was not performed as an emergency or urgent procedure. The Veteran, as noted above, did not lose weight. He did not require hospitalization for GI disability before the corrective surgery could be performed. Although the Veteran's anemia required treatment, the treatment is through medication, and it has been noted that the medication controls the anemia. The Veteran manifested symptoms, including chest pain and tachycardia, which were thought to possibly be symptoms of disorders which might be serious of impairments of health, such as a myocardial infarction. However, once cardiac etiology of the symptoms was ruled out, the providers did not attribute serious health impairment to the GI symptoms. For these reasons, the Board finds that Veteran's GI disability is encompassed within the criteria for a 30 percent evaluation, and does not result in health impairment which meets or approximates the criteria for a 60 percent evaluation. The preponderance of the evidence supports a 30 percent evaluation, but is against an evaluation in excess of 30 percent. 38 U.S.C.A. § 5017(b). 2. Claim for higher staged ratings for lumbar disability Currently, a 20 percent rating for degenerative arthritis of the lumbosacral spine is in effect prior to March 20, 2013, and a 40 percent rating is in effect from that date. The criteria for rating all spine disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine. The current version of that regulation has been in effect since September 2003. Spine disabilities are evaluated either 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The general rating formula provides for a 10 percent evaluation when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. Lumbosacral strain warrants a 20 percent rating where 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 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 40 percent evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. 38 C.F.R. § 4.71a, DC 5237. Further instructions under the general formula provide that neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id., Note 1. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a Note (2); see also 38 C.F.R. § 4.71, Plate V. Each range of motion measurement is rounded to the nearest five degrees. In addition, if the Formula for Rating Intervertebral Disc Syndrome (IVDS) is applicable, a 10 percent disability rating for IVDS with incapacitating episodes is warranted when the total duration of at least one week but less than 2 weeks during the past 12 months, and higher ratings are warranted for longer periods of incapacity. 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. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. Id. (assignment of highest rating for pain without other objective findings would lead to potentially "absurd results." Id. at 43. Facts The Veteran underwent discectomy in November 2007 at a VA Medical; Center. In December 2007, he reported return of the pain that the basis for the surgery. The Veteran sought and was granted a temporary total disability evaluation beginning in November 2007, when he had the surgery. At the termination of the temporary total rating, the Veteran's lumbar disability was gain rated as 20 percent disabling, from January 2008. January 2008 private clinical records of treatment for lumbar disability do not reflect specific evaluation of the Veteran's lumbar range of motion. VA examination conducted in March 2008 disclosed that the Veteran had forward flexion to 50 degrees, with increased pain throughout the entire range of motion, with fatigue and increased pain if motions were repeated. However, the examiner did not quantify the limitation of motion following the repetitive motion testing. The Veteran was unable to extend without pain. Records provided by the Social Security Administration, including an August 2008 vocational assessment, do not disclose evaluation of range of lumbar flexion. VA outpatient records reflect numerous assessments of the Veteran's lumbar pain during the following years, including assessments for a TENS unit, epidural steroid injections, a trial spinal stimulator, and a permanent spinal stimulator, which was placed in June 2012. However, these records do not disclose the Veteran's lumbar motion. These records disclose that the Veteran was limited by his pain, and remained under continuous medical supervision, but did not manifest specific incapacitating episode for which bedrest was prescribed. The examiner who conducted March 2013 VA examination discussed the Veteran's intervertebral disc disease, the functional effects, and the reduction of pain by 60 percent due to the spinal stimulation. The Veteran's range of motion was to 30 degrees, with pain beginning at that point. After repetitive motion testing, the Veteran's range of forward flexion was unchanged, but extension and lateral flexion were reduced. Analysis a. Rating through March 5, 2008 This evidence is unfavorable to the claim for a rating in excess of 20 percent at the time of the March 2008 VA examination, because the Veteran's forward flexion remained in excess of 30 degrees, although it was less than 60 degrees. The next higher rating, a 40 percent rating, may be assigned where forward flexion is 30 degrees or less. 38 C.F.R. § 4.71a. The Veteran's combined range of motion (flexion, extension, left and right lateral flexion and left and right rotation) was in excess of 120 degrees, so a rating in excess of 20 percent is not warranted at the time of the March 5, 2008 VA examination. b. Rating from March 6, 2008 A set forth above, the Veteran continued to complain of increasing back pain, and underwent numerous evaluations and therapies. However, the providers were primarily concerned with the Veteran's level of pain, and less so with his retained range of motion. Range of motion was not shown until VA examination in March 2013. At that time, the Veteran's range of motion was limited to a degree that warrants a 40 percent evaluation. The Board is unable to locate a clinical record or opinion which reflects when the Veteran's range of lumbar motion decreased to 30 degrees or less. Since the Board is unable to determine when the increased limitation of motion was first factually ascertainable, the Board resolves this factual deficiency by assuming that the decreased range of motion may have been present as early as the day following the March 5, 2008 VA examination. Therefore, the Board finds, resolving doubt in the Veteran's favor, that he is entitled to an increased evaluation from 20 percent to 40 percent from March 6, 2008. The 40 percent evaluation assigned from March 6, 2008, is the maximum schedular evaluation which may be assigned based on limitation of range of lumbar flexion, unless there is ankylosis. A higher evaluation may be assigned if there is ankylosis, defined as fixation in flexion or extension. 38 C.F.R. § 4.71a, Note (2). However, as the Veteran retains some motion in each plane, and had a combined range of motion in excess of 120 degrees, an increased evaluation based on factual ankylosis is not warranted. Note (5) to the General Rating Formula for Diseases and Injuries of the Spine describes limitations which result from ankylosis, including difficulty walking because of limitation of the line of vision, restricted opening of the mouth and chewing, limited excursion of the diaphragm limiting breathing due to limited motion of the spine, and the like. The Veteran does not allege that his subjective complaints of pain result in such restrictions, nor has any medical provider suggested that his pain limited motion of spine to such degree. Therefore, the Board finds that, even with consideration of functional loss of motion of the spine due to pain, the Veteran's symptomatology does not approximate the criteria for a higher evaluation based on limitation of motion of the spine. The Veteran is entitled to a rating in excess of 40 percent, since he has IVDS, if there were incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. However, the evidence establishes that no provider prescribed bedrest for the Veteran during the pendency of the claim, so he does not meet the schedular criteria for a higher rating based on incapacitating episodes. The Board has also considered the Veteran's complaints of pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that the objective functional loss related to lumbar pain is accounted for in the staged schedular ratings assigned above. Pain, without objective functional loss, does not require that a higher rating be assigned. Id. (assignment of highest rating for pain without other objective findings would lead to potentially "absurd results." Id. at 43. To the extent that the Veteran's pain is not encompassed in the 40 percent evaluation assigned for lumbar disability, the Board must consider whether an extraschedular evaluation is warranted. That consideration is discussed below. The Board further notes that, to the extent that the Veteran's schedular ratings do not compensate him for interference with employability due to service-connected disabilities, the Veteran has been awarded TDIU benefits, effective from January 1, 2008. 3. Claim for higher initial rating for right lower extremity radiculopathy An initial 20 percent evaluation has been assigned for the Veteran's right lower extremity radiculopathy, under 38 C.F.R. § 4.124a, DC 5237-8521. DC 8520 assigns a 10 percent rating for mild, incomplete paralysis of the sciatic nerve. A 20 percent rating is assigns for moderate, incomplete paralysis. A 40 percent evaluation is in order for moderately severe incomplete paralysis of the sciatic nerve. DC 8520. Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability evaluation. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. DC 8521 assigns a 10 percent rating for mild, incomplete paralysis of the external popliteal nerve. A 20 percent rating is assigned for moderate, incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis of the popliteal nerve. 38 C.F.R. § 4.124a, DC 8521. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See Id. The terms "mild," "moderate," and "severe" 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. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Facts January 2008 and March 2008 evaluations reflect that the Veteran's reported radicular symptoms were diminished ability to walk, and diminished sensation in thigh, calf, and foot. On VA examination conducted in March 2008, the right Achilles tendon reflex was absent. There was generalized weakness of the right leg muscles, described as 4/5. On May 2008, the VA provider noted that the protective sensation was absent in right lower leg. On VA examination in 2013, the Veteran had an antalgic gait, disturbance of locomotion, muscle strength varying from 4/5, for right hip flexion, to 5/5 for ankle plantar flexion. Right knee reflex was present, but the right ankle reflex was absent. The Veteran had no muscle atrophy. Sensation was present in the right thigh and knee, was absent at the ankle and toes on the right. The Veteran had severe intermittent pain in the right lower extremity. The examiner identified the sciatic nerve as the affected nerve, and described the Veteran's symptoms as moderate, as to constant pain and parasthesias, and severe as to intermittent pain and numbness. Analysis A 20 percent rating is assigned for moderate, incomplete paralysis, or sensory effects only. A 40 percent evaluation is in order for moderately severe incomplete paralysis of the sciatic nerve. The evidence establishes that the Veteran's right leg radiculopathy includes manifestations other than sensory only, as there is an absence of the normal reflex at the ankle. As the examiner who conducted the 2013 evaluation stated that two of the four rated radicular symptoms were moderate in the right leg, and two were severe. The examiner described the severity of the Veteran's radiculopathy in the right lower extremity as "moderate." The Board finds that the severity of the radicular symptoms approximates moderately severe incomplete paralysis of the sciatic nerve, and warrants a 40 percent initial rating. The Board notes that the description of the Veteran's radiculopathy in the right lower extremity, especially as to numbness and absence of reflexes, has changed little during the pendency of the claim, although the description at the time of the 2013 VA examination is more specific. The Veteran does not, however, meet the criteria for an initial 60 percent evaluation. No provider has indicted that the Veteran has muscle atrophy. The Veteran remains able to move the right lower extremity in all planes of motion normal for each joint, although with weakness of some motions. The Veteran does not have a drop foot or any manifestation of complete paralysis of a muscle. The preponderance of the evidence is against an initial schedular evaluation in excess of 40 percent for radiculopathy of the right lower extremity. Extraschedular Consideration The Board next considers whether the Veteran is entitled to a rating in excess of the assigned schedular evaluation for any of the service-connected disabilities addressed herein. An extraschedular evaluation, that is, an evaluation higher than the assigned schedular evaluation, may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court additionally held that the Board must address referral under § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. See Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). The Court has further held that VA was within its discretion to interpret § 3.321(b)(1) as limiting consideration for extraschedular ratings to individual service-connected disabilities and not to multiple service-connected disabilities on a collective basis. See Johnson v. Shinseki, 26 Vet. App. 237, 241-45 (2013). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The criteria of the applicable Diagnostic Codes adequately contemplate the present level of impairment from the Veteran's lumbar, GI, and right lower extremity disabilities. In particular, the Veteran's complaints of pain have been considered in the ratings for lumbar, GI, and radiculopathy disabilities. The schedular criteria allow higher ratings based on limitation of range of motion due to pain or for increased GI symptoms or radiculopathy based on pain. The clinical evidence fails to show that the disability picture created by any of the service-connected disabilities addressed in this decision results in exceptional or unusual symptoms or an unusual disability picture. The symptoms shown by the clinical evidence and the Veteran's statements are consistent with the service-connected disabilities at issue. The Veteran never voiced any symptoms nor does the clinical show any objective signs that are atypical relating to any of his service-connected disabilities. Furthermore, the Board notes that all symptoms relating to each service-connected disability were contemplated in evaluating it under the schedular criteria. Consequently, the Board finds that the evidence fails to establish that VA's rating schedule is inadequate to fully compensate the Veteran's service-connected disabilities. If the analysis for any of the service-connected disabilities addressed in this decision proceeds to the second step, the criteria for proceeding from the second step to the third step of the analysis are not met. In particular, the Veteran's GI disability resulted in two hospitalizations during the portion of the appeal from May 15, 2008, while a 30 percent schedular evaluation is assigned. The Board does not find that two hospitalizations in the five years since May 15, 2008 is unusual or exceptional, given the duration of time and the assignment of a 30 percent rating. The Veteran's lumbar disability and radiculopathy have not resulted in hospitalization since the expiration of temporary total disability in early 2008. The Veteran has been awarded TDIU, based on inability to work due to all service-connected disabilities, and there is no factual evidence or unusual or exceptional circumstance which establishes that one of the service-connected disabilities addressed in this decision present such marked interference with industrial capability as to warrant referral for an extraschedular consideration. The preponderance of the evidence is, therefore, against finding that referral of any of the service-connected disabilities at issue in this decision for extraschedular consideration is warranted pursuant to the provisions of 38 C.F.R. § 3.321(b). ORDER The appeal for an increased disability rating in excess of 10 percent prior to May 15, 2008, is denied, and an increased disability rating from 10 percent to 30 percent, but no higher evaluation, for the residuals of gallbladder surgery, hiatal hernia, and GERD, is granted from May 15, 2008, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. The appeal for an increased disability rating in excess of 10 percent prior to May 15, 2008, is denied, and an increased disability rating from 20 percent to 40 percent for degenerative arthritis of the lumbosacral spine with mechanical low back pain and intervertebral disc disease is granted from March 6, 2008, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. An increased disability rating from 20 percent to 40 percent for radiculopathy, right lower extremity, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs