Citation Nr: 1328287 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-20 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for herniated nucleus pulposus at L5-S1 prior to August 25, 2009. 2. Entitlement to a disability rating in excess of 20 percent for herniated nucleus pulposus at L5-S1 on or after August 25, 2009. 3. Entitlement to an increased evaluation for left leg weakness, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the RO, in pertinent part, continued the 10 percent evaluation for the Veteran's service-connected herniated nucleus pulposus at L5-S1 and the 10 percent evaluation for his service-connected left leg weakness. During the pendency of the appeal, in a September 2009 rating decision, the RO increased the evaluation for herniated nucleus pulpous to 20 percent effective from August 25, 2009. However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue has been recharacterized as reflected on the title page. A review of the Veterans Benefits Management System and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the period prior to August 25, 2009, the Veteran's herniated nucleus pulposus at L5-S1 resulted in an abnormal gait and more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. Throughout the appeal period, the Veteran's herniated nucleus pulposus at L5-S1 has not been productive of forward flexion of the thoracolumbar to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 3. Throughout the appeal period, the Veteran has not had a separate neurological disability distinct from his lumbar spine disability other than his service-connected left leg weakness. 4. The Veteran's left leg weakness is productive of no more than mild paralysis of the sciatic nerve in the left leg. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability for herniated nucleus pulposus at L5-S1 has been met for the period prior to August 25, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a disability rating in excess of 20 percent for herniated nucleus pulposus at L5-S1 have not been met at any point during period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.14, 4.40-4.45, 4.71a, Diagnostic Code 5242 (2012). 3. The criteria for an evaluation in excess of 10 for left leg weakness have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with a notification letter in February 2009, prior to the initial decision on the claim on appeal. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The February 2009 notice letter notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The February 2009 letter provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation. Specifically, he was informed in the notice letters of types of evidence that might show such a worsening, including information about on-going treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him. In addition, the February 2009 notice letter informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim and also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran and his representative have not identified any available, outstanding records that are relevant to the claim decided herein. The Veteran was also afforded VA examinations in September 2008 and August 2009 in connection with his current claims. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination, and fully address the rating criteria that are relevant to rating the disabilities in this case. The Board does observe that the September 2008 examiner did not review the claims file; however, both September 2008 and August 2009 examiners did review the Veteran's own medical history and complaints, and they performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was informed of the relevant facts in rendering a medical opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he 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. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him with a statement of the case (SOC) and a supplemental statement of the case (SSOC), which informed him of the laws and regulations relevant to his claim. The Veteran was also offered an opportunity to provide testimony before a Decision Review Officer at the RO, but he failed to appear for that hearing without explanation. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). I. Lumbar Spine Disability The Veteran's service-connected herniated nucleus pulposus at L5-S1 is currently assigned a 20 percent disability evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective from August 25, 2009. Prior to August 25, 2009, the Veteran's service-connected herniated nucleus pulpous was assigned a 10 percent disability evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, a 10 percent evaluation is appropriate for 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; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and 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, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For purposes of VA compensation, the regulations define normal range of motion for the thoracolumbar spine as 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). 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. Id. Note (2). In considering the evidence of record under the laws and regulations, the Board finds that the Veteran is entitled to an increased rating of 20 percent prior to August 25, 2009. In this regard, the September 2008 VA examiner noted that the Veteran had paraspinous tenderness along L1 though L5 bilaterally, and in terms of his lumbar posture, his pelvis was titled slightly to the right. His lordotic curve was also slightly flat, and he had an abnormal gait favoring weight on his right leg when he walked. In addition, a May 2009 VA rehabilitation medicine consultation note indicated that the Veteran had 20 degrees of flexion, 20 degrees of extension, 10 degrees of lateral bending, and 45 degrees of rotation bilaterally. A private treatment record from Dr. J.A.L. (initials used to protect privacy) further revealed tightness about 60 to 70 percent normal range of motion. Thus, taking into account the provisions of 38 C.F.R. §§ 4.40 , 4.45, 4.59 and the holdings of DeLuca, supra, the Board finds that the Veteran's disability more nearly approximates the criteria for 20 percent for the period prior to August, 25, 2009. The Board has also considered whether an evaluation in excess of 20 percent is warranted at any point during the appeal period. However, the preponderance of the evidence weighs against a finding that the Veteran has forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In this regard, the September 2008 VA examination revealed forward flexion to 80 degrees, extension to 15 degrees, left side bending to 25 degrees with pain at 10 degrees, right side bending to 15 degrees with pain at 5 degrees, and right and left side rotation to 25 degrees. Thus, even considering pain, the Veteran's range of motion did not more nearly approximate the rating criteria for a 40 percent rating. As previously noted, a May 2009 VA rehabilitation medicine consultation note did indicate that the Veteran had 20 degrees of flexion, 20 degrees of extension, 10 degrees of lateral bending, and 45 degrees of rotation bilaterally. However, the private treatment record from Dr. J.A.L. seems to suggest that the Veteran still had 60 to 70 percent of the normal range of motion. Given that normal forward flexion is 90 degrees, such a restriction would still equate to more than 30 degrees. Moreover, the August 2009 VA examination revealed forward flexion to 45 degrees, extension to 20 degrees, left side bending to 20 degrees, right side bending to 25 degrees, and bilateral rotation to 25 degrees. Thus, the weight of the evidence shows that the Veteran did not have forward flexion limited to 30 degrees. The Board also notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The aforementioned range of motion findings do not demonstrate that the Veteran's lumbar spine is immobile or fixed in place. In addition, the Veteran has not been shown to have incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks but less than six weeks during the past 12 months. As previously noted, an incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a , Diagnostic Code 5293, Note 1. In this case, there are no treatment records associated with the claims file indicating that the Veteran was prescribed four or more weeks of bed rest by any physician for his back. Moreover, the August 2009 VA examiner stated that the Veteran did not have any flare-ups or any incapacitating episodes in the past 12 months. After reviewing the record, the Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his herniated nucleus pulposus at L5-S1. The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. The Board does acknowledge the Veteran's complaints of radiating pain and numbness in his left lower extremity. However, the Veteran is already separately service-connected for left leg weakness. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Moreover, the September 2008 VA examiner noted that the Veteran only complained of the radiating pain and numbness affecting his left leg. There was no complaint pertaining to his right lower extremity. Similarly, the August 2009 VA examiner indicated that no right leg symptoms were reported. In addition, the latter examiner stated that there were no urinary or bowel symptoms. Therefore, the Board concludes that the Veteran did not suffer from additional neurological deficiency that is a manifestation of his service-connected lumbar spine disability so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman, 6 Vet. App. at 129-132. The Board has also considered the provisions of 38 C.F.R. §§ 4.40 , 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent disability evaluation. Moreover, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, even when considering the pain documented during the September 2008 VA examination, those findings still do not approximate forward flexion to 30 degrees or less or ankylosis. In addition, the August 2009 VA examiner indicated that there were no flare-ups and no additional limitations, such as additional loss of motion due to flare-ups or repetitive use, painful motion, weakness, excess fatigability, lack of endurance, or incoordination. Indeed, he stated that passive range of motion was no different than active range of motion and commented that there was no objective evidence of pain. Therefore, the Board finds that the preponderance of the evidence is against a finding that an evaluation in excess of 20 percent is warranted. II. Left Leg Weakness In this case, the Veteran is currently assigned a separate 10 percent evaluation for his left leg weakness pursuant to 38 C.F.R. § 4.124(a), Diagnostic Code 8520. Under that diagnostic code, a 10 percent evaluation is contemplated for mild incomplete paralysis, and a 20 percent evaluation is assigned for moderate incomplete paralysis. A 40 percent evaluation is warranted for severe incomplete paralysis, and a 60 percent evaluation is contemplated for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation 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. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for left leg weakness. At a September 2008 VA examination, the Veteran reported pain and numbness down the posterior thigh and the left calf with increased pain after prolonged standing on hard surfaces. His sensation to soft touch was normal over both lower extremities and all dermatomes. There was no atrophy of muscle mass on the left leg. Strength testing performed on flexion and extension revealed decreased strength in the left leg compared to the right. Indeed, strength tests were 4/5 on flexion and extension. Straight left tests were negative. No radicular pain was noted below the knee. The Veteran had referred pain to the low back when the left leg was at 45 degrees. The final diagnosis was history of left leg paralysis sciatic nerve with no new remarkable findings noted. In a March 2009 private physical therapy treatment record, the Veteran reported constant numbness and tingling in the left leg with occasional weakness. In August 2009, the Veteran underwent a VA examination during which he reported constant pain in his left leg gradually worsening from the low back and buttocks laterally to the left knee. He also reported occasional twitching in his left foot and a sense of weakness in his left leg. On examination, he had intermittent mildly antalgic gait favoring the left leg. He also had normal toe walking, heel walking, half squat, and left great toe extension. His sensation to soft touch was normal. He had mildly increased sensation to light touch over the medial and lateral left foot and left lower leg. Straight leg tests were normal with no radicular pain below the knee bilaterally. The examiner noted the left leg weakness associated with the herniated nucleus pulposus historically and stated that there was no diagnosis because, although there were symptoms, there was no current clinical objective evidence of disease or pathology. The Board finds that, based upon the evidence of record, an increased rating is not warranted. The August 2009 VA examination specifically indicated that there was no objective evidence of disease or pathology. Moreover, the Board finds that the disability remained largely constant throughout the appeal period. Specifically, since he was first examined in September 2008, the Veteran complained of left leg weakness, but strength testing was normal on every VA examination report during the appeal period. During the August 2009 VA examination, the examiner noted the Veteran's reports of symptomatology, but noted straight leg tests were normal with no radicular pain. Moreover, in private treatment in August 2009, Dr. J.A.L. found normal lower extremity motor and sensory examination. Considering the evidence of record, the service-connected left leg weakness is consistent with an evaluation of no more than mild incomplete paralysis of the sciatic nerve. V. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veterans herniated nucleus pulposus and left leg weakness are so exceptional or unusual as to warrant the assignment of higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule show that the rating criteria reasonably describe the Veteran's disability levels and symptomatology, including the primary complains of pain, limitation of motion, and numbness. Moreover, there are higher ratings available under the diagnostic codes, but the Veteran's disabilities are not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbar spine disability and left leg weakness under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Subject to the provisions governing the award of monetary benefits, a 20 percent disability evaluation for herniated nucleus pulposus at L5-S1 for the period prior to August 25, 2009, is granted. An evaluation in excess of 20 percent for herniated nucleus pulposus at L5-S1 is denied for the entire period on appeal. An evaluation in excess of 10 percent for left leg weakness is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs