Citation Nr: 1328567 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-38 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for intervertebral disc syndrome with degenerative disc disease of the lumbar spine from April 11, 2012. 2. Entitlement to a separate compensable evaluation for post-surgical scarring associated with intervertebral disc syndrome with degenerative disc disease of the lumbar spine. 3. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity from November 30, 2011 to June 14, 2013. 4. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity from November 30, 2011 to June 14, 2013. 5. Entitlement to a disability rating in excess of 40 percent for radiculopathy of the right lower extremity from June 14, 2013. 6. Entitlement to a disability rating in excess of 40 percent for radiculopathy of the left lower extremity from June 14, 2013. 7. Entitlement to an effective date earlier than April 11, 2012, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from December 1983 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which continued a 10 percent disability rating for lumbosacral strain and increased the disability ratings for radiculopathy of the left and right lower extremities, from 0 to 10 percent each, effective January 17, 2007, the date of claim. In a January 2012 rating decision, the RO increased the disability ratings for radiculopathy of the left and right lower extremities, from 10 to 20 percent each, effective November 30, 2011. In an April 2012 rating decision, the RO increased the disability rating for the lumbar spine disability from 10 to 60 percent, effective April 11, 2012. In November 2012, the Board granted a 20 percent disability rating for intervertebral disc syndrome with degenerative disc disease, lumbar spine, prior to April 11, 2012, and separate 20 percent disability ratings for radiculopathy of the right and left lower extremities, prior to November 30, 2011. The Board remanded the claim for a rating higher than 60 percent for intervertebral disc syndrome with degenerative disc disease, lumbar spine, from April 11, 2012, as well as the claims for higher ratings for right and left lower extremity radiculopathy from November 30, 2011, for additional development. During the pendency of this appeal, by a rating decision in June 2013, the RO increased the Veteran's disability ratings for right and left lower extremity radiculopathy to 40 percent, respectively, effective June 14, 2013. Because these increased ratings do not represent a grant of the maximum benefits allowable, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the issues have been framed as listed on the title page. This matter also comes from a July 2012 rating decision that implemented a July 2012 Board decision and granted a TDIU, effective April 11, 2012. In July 2013 correspondence, the Veteran indicated that he did not agree with the effective date of the grant of a TDIU, and asserted that TDIU should be granted effective January 2007, the date of claim for increased disability ratings for the lumbar spine disability and the right and left lower extremity radiculopathies. The issue of entitlement to an effective date earlier than April 11, 2012, for the grant of a TDIU, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. As of April 11, 2012, intervertebral disc syndrome with degenerative disc disease of the lumbar spine has not been manifested by unfavorable ankylosis of the entire spine. 2. From June 14, 2013, intervertebral disc syndrome with degenerative disc disease of the lumbar spine is manifested by a painful surgical scar that does not exceed six square inches, is not unstable, and has not been determined to cause limited function. 3. From November 30, 2011 to June 14, 2013, the Veteran's radiculopathy of the right and left lower extremities was manifested by no more than moderate incomplete paralysis. 4. From June 14, 2013, the Veteran's radiculopathy of the right and left lower extremities was manifested by no more than moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. As of April 11, 2012, the criteria for entitlement to an evaluation in excess of 60 percent for intervertebral disc syndrome with degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2012). 2. From June 14, 2013, the criteria for a separate 10 percent evaluation, but no higher, for a painful surgical scar, have been met. 38 U.S.C.A § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7801-7805 (in effect prior to October 23, 2008). 3. From November 30, 2011 to June 14, 2013, the criteria for a disability rating higher than 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.31, 4.124, 4.124a, Diagnostic Code 8520 (2012). 4. From November 30, 2011 to June 14, 2013, the criteria for a disability rating higher than 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.31, 4.124, 4.124a, Diagnostic Code 8520 (2012). 5. From June 14, 2013, the criteria for a disability rating higher than 40 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.31, 4.124, 4.124a, Diagnostic Code 8520 (2012). 6. From June 14, 2013, the criteria for a disability rating higher than 40 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.31, 4.124, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in January 2007, August 2007, June 2008, November 2008, and July 2012. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). Additionally, the claims were readjudicated in the June 2013 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, Social Security Administration (SSA) records, Virtual VA file, and private and VA treatment records have been obtained. In addition, the Veteran has been provided with VA examinations in connection with the claims herein decided. As the examination reports contains pertinent medical history and findings, to include those pertaining to the rating criteria, the Board finds that the reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 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). The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, (1993). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376- 77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Disabilities of the lumbar spine (other than intervertebral disc syndrome when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51, 454 (Aug. 27, 2003), now codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. at 51,455 (Supplementary Information). Under Diagnostic Codes 5235-5242, ratings in excess of 40 percent are allowed for unfavorable ankylosis of the entire thoracolumbar spine (50 percent) and for unfavorable ankylosis of the entire spine (100 percent). Any associated objective neurological abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a (2012), Note (1). 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 or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a (2012), Note (5). Under the criteria governing disabilities of the lumbar spine, intervertebral disc syndrome is to be 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. 38 C.F.R. § 4.71a (2012). 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, Note (1) (2012). This formula provides a maximum 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. This formula does not provide for a rating in excess of 60 percent rating. The rating schedule also provides guidance for separately rating neurologic impairment. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Here, the Board notes that other than the neurological impairment of the lower extremities addressed below, at no time during the periods on appeal has the Veteran reported bowel or bladder or other impairment associated with his service-connected degenerative disc disease. Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124A, Diagnostic Code 8520. A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran underwent a VA neurological examination in November 2011. Reportedly, he continued to experience pain in the lower extremities, worse on the right leg, following lumbar spine surgeries in May and October 2010. Prior electromyography (EMG) studies were noted to show bilateral radiculopathy, right greater than left, at L4, 5, and S1. Diabetes with a very mild sensory neuropathy was also noted. Strength appeared normal in both legs, except for a tendency to give way on the hamstrings, bilaterally. Reflexes were decreased. Motor function was normal. There was no gross atrophy or fasciculation. There was slight decrease to pinprick sensation in his distal feet. The Veteran related more loss of sensation over L4-5 distribution, greater on the right side. The Veteran was able to walk on his heels and toes. There was exaggerated lordosis and some tenderness over the lumbosacral spine. Flexion was restricted with inability to reach horizontally by about 10 degrees. There was also some reduced extension. Healed scars were noted over the lumbosacral region. The examiner described bilateral radiculopathy, characterized by pain and sensory deficits, which was moderate in severity. On VA spine examination in April 2012 the Veteran complained of daily pain in the back and lower extremities. He rated his pain as 7/10, with exacerbations once or twice a week that resulted in incapacitation due to intractable pain and confinement to chair or bedrest. The Veteran reported inability to sit, stand or walk for more than a few minutes at a time. There was lumbar spine flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and bilateral rotation to 10 degrees. There was objective evidence of pain throughout the range of motion. Repetitive-use testing was productive of additional limitation of flexion to 30 degrees, and extension to 20 degrees. The examiner noted less movement than normal and pain on movement with repetitive-use testing, as well as disturbance of locomotion, interference with sitting, standing and /or weight bearing. The Veteran did not require assistive devices for ambulation. There was tenderness to palpation, guarding, muscle spasms and abnormal spinal contour. The examiner noted intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. At the examination, the Veteran also reported radiation of low back pain and numbness to both lower extremities. The sciatic nerve was affected. The examiner found no evidence of muscle atrophy. Knee and ankle reflexes were 1+. There was decreased sensation to light touch in the lower extremities. Radiculopathy of the right and left lower extremity was characterized as moderate. No other neurologic abnormalities, to include bowel or bladder impairment, related to the service-connected lumbar spine disability, were identified. Additionally, the examiner noted 3 small linear vertical surgical scars, parallel, at about L-4, 5 level posterior torso midline, and a 2 centimeters (cm) either side of midline, each measuring 5 cm by 1 cm. The scars were not tender, painful and/or unstable, and the total area of the scars was less than 39 square cm. There was no evidence of skin breakdown due to scarring. The Veteran underwent a VA spine examination on June 14, 2013. He complained of constant pain aggravated by standing and walking one to two feet. The pain was reportedly productive of multiple functional limitations, to include an inability to squat, kneel, or do any repetitive bending of the spine. Flare-ups of pain resulted in a total loss of normal function, and occurred on a daily basis, secondary to activities of daily living. Flare-ups of the condition lasted up to three days at a time. Pain was relieved by self imposed bedrest, nonsteroidal anti-inflammatory drugs (NSAID) and narcotic medication. The Veteran regularly wore a brace to assist with ambulation. Flexion was to 45 degrees with pain, extension was to 15 degrees with pain, right lateral flexion was to 20 degrees with pain, left lateral flexion was to 25 degrees with pain, and rotation was to 30 degrees with pain, bilaterally. There was no additional limitation of motion with repetitive use. The Veteran's thorocolumbar spine disability was productive of less movement than normal, weakness, excess fatigability, tenderness over L3-S1, incoordination, pain on movement, swelling, instability of station, disturbance of locomotion, abnormal gait, interference with sitting and standing, and episodes of giving way resulting in unexpected falls. The examiner noted diagnoses of degenerative joint and disc disease of the thorocolumbar spine, intervertebral disc syndrome that resulted incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, and failed back surgery, status post-pedicle screw and rod fixation of L5-S1 with a disk implant. On neurological examination, the lower extremities exhibited 4/5 muscle strength with no muscle atrophy. There were trophic changes in the lower extremities, to include microfilament and absent light touch. Deep tendon reflexes were 1+ bilaterally. Sensation to light touch was absent and straight leg raising was negative, bilaterally. Symptoms of radiculopathy, including pain and numbness, were described as severe. There was involvement at L4/L5/S1/S2/S3 nerve roots (sciatic nerve). There was moderate incomplete paralysis of the popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior popliteal nerves, bilaterally. The Veteran denied any bowel or bladder dysfunction. Finally, the examiner also noted multiple lumbar painful surgical scars at L3-L5. Specifically, there was a scar measuring 0.5 cm in width and 4.0 cm in length. The scar was painful and deep. There was no evidence of skin breakdown due to the scar. No other disabling effects were noted. A. Entitlement to a disability rating in excess of 60 percent for intervertebral disc syndrome with degenerative disc disease of the lumbar spine from April 11, 2012 The Veteran contends that his intervertebral disc syndrome with degenerative disc disease is worse than the current 60 percent evaluation contemplates. The preponderance of the evidence of record for the period beginning on April 11, 2012, does not support a rating in excess of 60 percent for the Veteran's service-connected lumbar spine disability under Diagnostic Codes 5235-5242. The Veteran is already in receipt of the maximum (60 percent) rating provided under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). This is the maximum evaluation permitted under this diagnostic code; thus, no higher evaluation is warranted. An increased evaluation under other potentially applicable diagnostic codes has been considered. Schafrath, 1 Vet. App. at 595. Under the General Rating Formula, the next highest evaluation is a 100 percent evaluation for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. As previously noted, unfavorable ankylosis is a condition in which or the entire spine is fixed in flexion or extension, and the ankylosis results in additional limitations. 38 CFR § 4.71a, General Rating Formula Note (5). On VA examination in April 2012 there was lumbar spine flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and bilateral rotation to 10 degrees. While there was objective evidence of pain throughout the range of motion, the Veteran retained motion of the thorocolumbar spine. Similarly, on VA examination in June 2013, flexion was to 45 degrees with pain, extension was to 15 degrees with pain, right lateral flexion was to 20 degree with pain, left lateral flexion was to 25 degrees with pain, and rotation was to 30 degrees with pain, bilaterally. There was no additional limitation of motion with repetitive use. Thus, the evidence does not demonstrate that there was any lumbar spine fixation in extension or flexion or other fixation of a spinal segment at any point during the appeal period. There is no evidence that the Veteran has unfavorable ankylosis of the entire spine so as to support the assignment of the next highest (100 percent) rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board again acknowledges the subjective and objective evidence of limited mobility; however, the Veteran has never asserted that his spine is completely fixed or that he is unable to flex, extend or rotate his spine and the evidence does not support a finding of ankylosis. Additionally, it is noted that the Veteran's intervertebral disc syndrome with degenerative disc disease of the lumbar spine involves surgical scars. Therefore, the Board has considered whether the Veteran is entitled to a separate rating for scars. During the pendency of this appeal for an increased rating, the applicable rating criteria for skin disorders, including residual scarring, 38 C.F.R. § 4.118, were amended. Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. These regulations were revised effective October 23, 2008. Application of the new criteria is limited to claims filed on or after October 23, 2008. Here, the Veteran's claims were received prior to October 23, 2008, and he has not requested any review under the new criteria. Accordingly, the revised schedular rating criteria are not applicable in this case and those in effect prior to October 23, 2008, must be applied. Pursuant to the criteria in effect prior to October 23, 2008, scars, other than of the head, face, or neck, are to be rated under Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, which governs scars, other than the head, face, or neck, that is deep or cause limited motion, a 10 percent evaluation is assignable when the area or areas exceed six square inches (39 square centimeters). A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801. Under Diagnostic Code 7802, which governs scars other than the head, face, or neck, that are superficial and do not cause limited motion, a 10 percent evaluation is assignable for area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7803, Note (1), (2). Under Diagnostic Code 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7805, other types of scars will be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7804. On VA examination in April 2012, the examiner noted 3 small linear vertical surgical scars, parallel, at about L-4, 5 level posterior torso midline, and a 2 cm either side of the midline, each measuring 5 cm by 1 cm. The scars were not tender, painful and/or unstable, and the total area of the scars was less than 39 square cm. There was no evidence of skin breakdown due to scarring. On June 14, 2013, the examiner also noted multiple lumbar painful surgical scars at L3-L5. Specifically, there was a scar measuring 0.5 cm in width and 4.0 cm in length. The scar was painful and deep. There was no evidence of skin breakdown due to the scar. No other disabling effects were noted. Based upon the evidence of record, and as the June 2013 VA examiner recently noted that the surgical scar was painful, the Board concludes that the residual scarring from the Veteran's lumbar spine surgeries warrants a separate 10 percent evaluation from the date of the examination showing that it was painful, that is June 14, 2013. An evaluation in excess of 10 percent, however, is not warranted, as the Veteran's surgical scarring does not exceed six square inches and has not been determined to cause limited motion or function, nor has an unstable scar been noted. Prior to June 14, 2013, a separate compensable rating is not warranted as the Veteran did not contend, nor did the record show, that the scar was painful. The VA examiner at the April 2012 VA examination specifically stated that the scar was neither tender nor painful. In addition, none of the scars exceeded six square inches caused limited function, or were unstable so as to warrant a minimum compensable rating. In conclusion, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 60 percent from April 11, 2012, for intervertebral disc syndrome with degenerative disc disease of the lumbar spine. Therefore, the claim for a higher rating is denied. A separate 10 percent evaluation, and no higher, is warranted for a painful scar from June 14, 2013. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Entitlement to disability ratings in excess of 20 percent for radiculopathy of the right and left lower extremities from November 30, 2011 to June 14, 2013 The Veteran contends that the service-connected right and left lower extremity radiculopathies warrant separate disability ratings in excess of 20 percent from November 30, 2011 to June 14, 2013. The preponderance of the evidence of record for the period beginning on November 30, 2011 to June 14, 2013, does not support separate disability ratings higher than 20 percent for the right and left lower extremity radiculopathies. On VA neurological examination in November 2011, the Veteran complained of pain that radiated to the lower extremities. Strength appeared normal in both legs, except for a tendency to give way on the hamstrings, bilaterally. Reflexes were decreased. Motor function was normal. There was no gross atrophy or fasciculation. There was slight decrease to pinprick sensation in his distal feet. The Veteran related more loss of sensation over L4-5 distribution, greater on the right side. The Veteran was able to walk on his heels and toes. The examiner specifically described the bilateral radiculopathy (characterized by pain and sensory deficits) as moderate in severity. Consistent with the November 2011 examination findings, on VA spine examination in April 2012 the Veteran complained of radiation of low back pain and numbness to both lower extremities. The sciatic nerve was affected. The examiner found no evidence of muscle atrophy. Knee and ankle reflexes were 1+. There was decreased sensation to light touch in the lower extremities. The examiner determined the radiculopathy of the right and left lower extremities was of moderate severity. Higher ratings are not warranted as more severe neurologic impairment has not been shown by the pertinent findings discussed above. Both examiners determined that the radiculopathy of the right and left lower extremity was no more than moderate in severity based on the Veteran's clinical presentation. Their objective clinical assessments are persuasive and afforded great probative weight. Again, there has been no showing of muscle atrophy, abnormal muscle tone or bulk, or any joint dysfunction indicative of moderately severe neurologic impairment from November 30, 2011 to June 14, 2013. C. Entitlement to separate disability ratings in excess of 40 percent for radiculopathy of the right and left lower extremities from June 14, 2013 The Veteran contends that disability ratings in excess of 40 percent are warranted from June 14, 2013. By a rating decision in June 2013, the RO increased the Veteran's disability ratings for right and left lower extremity radiculopathy to 40 percent, respectively, effective June 14, 2013. The increased ratings were based on neurological findings reported on VA examination in June 2013, which showed a disability picture consistent with moderately severe neurologic impairment. In this regard, the VA examiner noted symptoms of radiculopathy, including pain and numbness, which were described as severe. There was involvement at L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The examiner found moderate incomplete paralysis of the popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior popliteal nerves, bilaterally. There were trophic changes in the lower extremities, to include micro filament and absent light touch. Sensation to light touch was absent and straight leg raising was negative, bilaterally. However, on examination there was no muscle atrophy in either extremity. The lower extremities exhibited 4/5 muscle strength and deep tendon reflexes were 1+ bilaterally. A 60 percent rating under Diagnostic code 8520 requires severe radiculopathy that is manifested by muscular atrophy. Based on the clinical findings provided at the June 2013 VA examination, the criteria are not met in this case. In the absence of severe incomplete paralysis with marked muscular atrophy in the right or left lower extremity, the criteria for separate 60 percent disability ratings under Diagnostic Code 8520 have not been met. In summary, the Board finds that the preponderance of the evidence is against the assignment of separate disability ratings higher than 20 percent for the service-connected right and left lower extremity radiculopathies from November 30, 2011 to June 14, 2013. The Board further finds that the evidence is against the assignment of separate ratings higher than 40 percent the service-connected right and left lower extremity radiculopathies from June 14, 2013. Therefore, the claims for higher ratings are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the statements of the Veteran regarding the severity of the service-connected intervertebral disc syndrome with degenerative disc disease of the lumbar spine and related scarring, and radiculopathy of the right and left lower extremities. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's low back with related scarring and lower extremity disabilities, has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the examinations. The medical findings as provided in the examination reports directly address the criteria under which the service-connected disabilities are rated. However, even considering the Veteran's credible statements regarding the impact of service-connected disabilities on his ability to function and symptomatology, the findings of the examinations do not support the assignment of higher ratings or additional separate ratings. Therefore, the Board finds the examination reports to be more probative than the Veteran's subjective evidence of complaints regarding the severity of symptomatology because they provide objective medical evidence of the manifestations of the service-connected disabilities. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria for the Veteran's service- connected low back disability with related scarring and radiculopathy of the bilateral lower extremities reasonably describe the Veteran's disability level and symptomatology. The criteria also provide for higher ratings for additional or more severe symptoms, which have not been shown. The service-connected degenerative disc disease is manifested by pain, limited motion and mobility, but without unfavorable ankylosis of the entire spine. His surgical scar associated with the degenerative disc disease is deep and painful, but does not exceed six square inches, is not unstable and does not cause limited function. The radiculopathy of the bilateral lower extremities that is associated with the degenerative disc disease is manifested by some trophic changes, pain and numbness, that more nearly approximates moderately severe incomplete paralysis. The respective rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. Further, the Veteran's current disability ratings contemplate industrial impairment and while he has been hospitalized for back surgery in May 2010; frequent periods of hospitalization have not been demonstrated during the appeal period. The rating criteria are therefore adequate to evaluate the Veteran's low back with related scarring and lower extremity disabilities, and referral for consideration of extraschedular ratings is not warranted. ORDER A disability rating in excess of 60 percent for intervertebral disc syndrome with degenerative disc disease of the lumbar spine from April 11, 2012, is denied. From June 14, 2013, a separate 10 percent evaluation, but no higher, for a painful scar is granted, subject to the law and regulations governing the payment of monetary benefits. A disability rating in excess of 20 percent for radiculopathy of the right lower extremity from November 30, 2011 to June 14, 2013, is denied. A disability rating in excess of 20 percent for radiculopathy of the left lower extremity from November 30, 2011 to June 14, 2013, is denied. A disability rating in excess of 40 percent for radiculopathy of the right lower extremity from June 14, 2013, is denied. A disability rating in excess of 40 percent for radiculopathy of the left lower extremity from June 14, 2013, is denied. REMAND The Veteran seeks entitlement to an effective date for the grant of a TDIU earlier than April 11, 2012. Additional development is required. A TDIU rating may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Prior to April 11, 2012, service connection was in effect for (1) intervertebral disc syndrome with degenerative disc disease, lumbar spine, rated as 20 percent disabling; (2) radiculopathy of the right lower extremity, rated as 20 percent disabling; and (3) radiculopathy of the left lower extremity, rated as 20 percent disabling. Under the Combined Rating Table (38 C.F.R. § 4.25), the Veteran had a combined evaluation of 50 percent prior to April 11, 2012, and thus did not meet the schedular threshold for TDIU under 38 C.F.R. § 4.16(a). A TDIU may be awarded on an extraschedular basis if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). However, in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there is some evidence of unemployability due to the Veteran's service-connected disabilities prior to April 11, 2012. In this regard, a March 2007 VA examination report noted that the Veteran was unemployed and had retired in 2002 for medical reasons, specifically due to his back condition. An October 2007 SSA disability determination shows that the Veteran was granted disability benefits with a primary diagnosis of affective/ mood disorders, and a secondary diagnosis of discogenic and degenerative back disorder. VA medical records include a November 2011 addendum report that indicates that since his recent surgeries in 2010 the Veteran was released to sedentary work in August 2011 and was maintained on pain medications. The Report noted that the Veteran was recommended to have restrictions to only sedentary work, and that he was now on chronic narcotic medications and other treatment at the Pain Clinic, which "certainly would affect his work abilities." The RO has not submitted the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration. On remand, this should be accomplished. Also, in light of the evidence of record, the Board finds that a retrospective medical opinion addressing the level of occupational impairment from the Veteran's service-connected intervertebral disc syndrome with degenerative disc disease of the lumbar spine and radiculopathy of the bilateral lower extremities, for the period from January 2007 to April 2012, would be most helpful. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Accordingly, the case is REMANDED for the following action: 1. Send the claims file to an appropriate VA examiner for a retrospective medical opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities of intervertebral disc syndrome with degenerative disc disease, lumbar spine and radiculopathy of the bilateral lower extremities, either alone or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation for the period from January 2007 to April 2012. The Veteran need not be re-examined unless an examination is deemed necessary. If an examination is deemed necessary, all indicated testing should be accomplished. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. If you are unable to offer an opinion, it is essential that you provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Then, refer his claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU based on an extraschedular basis for the period from January 2007 to April 11, 2012. 3. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs