Citation Nr: 1328813 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-06 926A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating in excess of 20 percent for degenerative disc disease with compression deformity of L-2. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from April 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, and issued by the RO in Detroit, Michigan. The January 2007 rating decision granted the Veteran service connection for degenerative disc disease with compression deformity of L-2 and assigned an initial rating of 20 percent, effective March 8, 2006, the date VA received the Veteran's claim for service connection. He has appealed with respect to the propriety of the initially assigned rating. During the pendency of the appeal, an April 2010 rating decision granted service connection for left lower extremity radiculopathy and assigned initial disability rating of 10 percent, effective July 9, 2009, the date VA received his claim for service connection for neuropathy. A July 2012 rating decision awarded an increased rating of 20 percent for left lower extremity and granted service connection for right lower extremity radiculopathy with an initial 10 percent disability rating, both awards made effective December 27, 2010, the date VA received the Veteran's claim for service connection for bilateral lower radiculopathy secondary to degenerative disc disease. While the Veteran did not appeal the April 2010 or July 2012 rating decisions with respect to the propriety of the ratings assigned for his bilateral lower extremity radiculopathy, such issues are part and parcel of his claim of entitlement to a higher initial rating for his back disability as the rating criteria governing the evaluation of such disabilities specifically indicate that that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Rating formula for Diseases and Injuries of the Spine (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's degenerative disc disease with compression deformity of L-2 is not manifested by limitation of flexion to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes, or neurologic impairment other than left lower extremity radiculopathy as of July 9, 2009, and right lower extremity radiculopathy as of July 10, 2010. 2. The Veteran's left lower extremity radiculopathy is manifested by no more than mild incomplete paralysis of the sciatic nerve for the period from July 9, 2009, to December 26, 2010, and no more than moderate incomplete paralysis of the sciatic nerve for the period beginning December 27, 2010. 3. Since July 10, 2010, the Veteran's right lower extremity radiculopathy is manifested by no more than mild incomplete paralysis of the sciatic nerve. 4. As of May 21, 2012, the Veteran's left lower extremity radiculopathy results in no more than moderate incomplete paralysis of the femoral nerve and his right lower extremity radiculopathy results in no more than mild incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for degenerative disc disease with compression deformity of L-2 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a separate rating in excess of 10 percent from July 9, 2009, to December 26, 2010, and a separate rating in excess of 20 percent as of December 27, 2010, for left lower extremity radiculopathy affecting the sciatic nerve have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 3. As of July 10, 2010, the criteria for a separate rating of 10 percent, but no higher, for right lower extremity radiculopathy affecting the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 4. As of May 21, 2012, the criteria for a separate rating of 20 percent, but no higher, for left lower extremity radiculopathy affecting the femoral nerve have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8526 (2012). 5. As of May 21, 2012, the criteria for a separate rating of 10 percent, but no higher, for right lower extremity radiculopathy affecting the femoral nerve have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8526 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Relevant to the Veteran's underlying claim for service connection for a back disability, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2006 letter, sent prior to the initial unfavorable decision issued in January 2007, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Moreover, as the Veteran has appealed with respect to the propriety of the initially assigned rating for his back disability from the original grant of service connection, the Board notes that VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his back disability was granted and an initial rating was assigned in the January 2007 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records, post-service VA and private treatment records, and records from the Social Security Administration (SSA) have been obtained and considered. The Veteran has not identified any additional, relevant records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in August 2006, June 2007, September 2009, and May 2012 in conjunction with his claim. Neither the Veteran nor his representative has alleged that the examinations are inadequate for rating purposes. Furthermore, the Board finds that the examinations are adequate as they include an interview with the Veteran, a review of the record, and a full examination, addressing the relevant rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The present appeal involves the Veteran's claim that the severity of his degenerative disc disease with compression deformity of L-2 warrants a higher initial disability rating. 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's degenerative disc disease with compression deformity of L-2 is evaluated as 20 percent disabling, effective March 8, 2006, under Diagnostic Code 5243, which pertains to intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may 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, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). Under the General Rating formula for Diseases and Injuries of the Spine, ratings are assigned as follows: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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 degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. In February 2006, the Veteran's private chiropractor stated that the first time the Veteran came to the practice was on August 15, 2005, for the chief complaints of neck, back, and leg pain. On examination, the Veteran's upper and lower extremity reflexes were within normal limits, but there was numbness in the posterior buttock, thigh, and leg. The Veteran's thorocolumbar range of motion showed a reduction in flexion at 70 degrees with pain in the left calf, extension was reduced at 20 degrees, and left lateral flexion was reduced at 20 degrees with pain in the lumbar spine and left extremity. X-ray studies of the lumbar spine indicated an old compression fracture of L2 and decreased disc spacing at L1-2, L2-3, L3-4, L4-5, and L5-S1. The Veteran was afforded a VA examination in August 2006. At such time, he reported that he had a tingling sensation most felt when he stood and that there was a pain intensity of 2 out of 10. Sometimes his lower back was stiff, mainly in the morning. His activities of daily living and his employment were not affected. There was no history of flare-ups or acute, incapacitating episodes of excruciating back pain during the last 12 months. The Veteran reported that he had no radiation of pain and did not have any impairment of bladder or bowel functions. He was not on any pain medication. On physical examination, he walked well and his posture was good. He did not use a back brace or cane. His lumbosacral spine revealed normal lumbar lordosis and good muscle tone without scoliosis. His range of motion for flexion was to 45 degrees with complaints of pain at the end of motion, extension was to 20 degrees with complaint of pain at the end of motion, and bilateral lateral flexion and bilateral rotation were both 15 degrees with complaints of pain at the end. There was no functional loss due to the subjective complaint of pain and there was no evidence of incoordination, weakness, or fatigability. Both of his lower limbs were negative for any neurological deficiency. In this regard, sensation to pin prick and light touch were normal at all dermatomes and motor strength was 5 out of 5. X-ray studies of the lumbosacral spine revealed evidence of degenerative disc disease at L5-S1 level with narrowing and sclerosis and compression deformity of L2 vertebra with disc degeneration. The VA examiner stated that there was limited motion but no neurological deficiency in the lower limbs. There was no additional limitation of motion due to pain, fatigue, weakness, and lack of endurance on repetitive use of the spine. There was no impairment of daily occupational activity due to his back condition. In March 2007, the Veteran's private chiropractor stated that the Veteran had been treated for the chief complaints of lower back pain and leg numbness. The Veteran reported that, if he stood longer than five to six minutes without moving, both legs went numb, which he described as a tingling. He reported that it interfered with his ability to work. The Veteran's range of motion was reduced at 70 degrees with pain produced in the left thigh and his range of motion for right rotation was reduced to 25 degrees with pain produced in the left thigh. Pin wheel testing of the lower extremity showed a decrease in sensitivity of the left posterior thigh at L4 and L5 dermatomes and there was a decrease in the S1 dermatome at the left toe. There was an increase in sensitivity on right posterior thigh for the L4. L5 dermatomes. Muscle testing revealed a weakened toe test on the left and on the posterior thigh. The Veteran had left hamstring weakness, left mild foot drop with the heel walking test, and the left foot mildly gave out with the toe walking test. He was diagnosed with subluxation complex of L4- 5, sacral segments, post lamenectomy syndrome, and sciatica. The Veteran was afforded a VA nerves examination in June 2007, at which time he reported numbness of the left leg and calf on both sides since his surgery in 1995. He had minor pain in his right leg. While his work was affected and his activities of daily living were limited there were no acute episodes of excruciating low back pain during the last 12 months. On physical examination, he had normal lumbar lordsis and did not appear to be in any pain. His muscle tone was good and without any spasm. Both lower limbs were negative for any neurological deficiencies and sensation to pinprick and light touch were present in all dermatomes. There was no evidence of foot drop nor was there any neurological deficiency in either of the lower limbs. The VA examiner stated that he reviewed the private and VA treatment reports and there was no manifestation in the lower extremities at the present time and as such not connected to degenerative disc disease. An August 2008 VA treatment note indicated that the Veteran had increased back pain with his new job and it also increased with prolonged standing. However, there was no radiation, weakness, or paresthesia. There were also no complications with bowel or urination control. Another August 2008 record reveals that the Veteran stopped driving trucks approximately nine months previously and was currently trying to build a pressure washing business. In July 2009, a VA treatment record stated that the Veteran was unemployed as a truck driver. It was also noted that he had sciatica with decreased sensation of the left foot and lumbar radiculitis. An EMG revealed electrodiagnostic evidence consistent with chronic left L5/S1 radiculopathy with ongoing axonal loss and left sural neuropathy. A September 2009 VA treatment record revealed decreased monofilament/light touch of the left foot, but normal monofilament/light touch of the right foot. The Veteran was afforded a VA nerve examination in September 2009. He reported a history of tingling and numbness of the left leg and foot since he injured his back during service and it was progressively worse since then. He reported numbness, paresthesia, and dysesthesia of the left leg and foot, which was manifested by tingling and numbness. His muscle strength of the left leg was a 5 and his motor function impairment was that he could not walk long distances and could not do strenuous activities. He also had decreased vibrations, pain, and light touch to the left toes with affected nerves of L5/S1. Muscle atrophy was present but there was no abnormal muscle tone or bulk and no function of the joint was affected by the nerve disorder; there were no tremors, tics, or other abnormal movements. His gait and balance were normal. Electrodiagnostic evidence was consistent with chronic left L5/S1 radiculopathy with ongoing axonal loss and left sural neuropathy. At the Veteran's September 2009 VA spine examination, he reported intermittent pain in his lower back that was a 2 or 3 out of 10 and a 9 or 10 out of 10 if it was worse. He stated that repetitive motion increased his pain. He also reported some pain in the left leg. He stated that his activities of daily living were limited and his work was affected. There was no history of flare-ups or acute episodes of excruciating back pain during the last twelve months. There were no problems with his bladder or bowel function and there was no radiation of pain. He did not use any back brace or cane for ambulation. On examination, the Veteran did not appear to be in any pain, he walked with normal heel toe gait, and tandem walking was satisfactory. He had normal lumbar lordosis, good muscle tone without any spasms, and no scoliosis. The Veteran's range of motion for flexion was to 40 degrees with a complaint of pain over the left buttock, his range of motion for extension was to 10 degrees with complaints of pain at the end of motion, bilateral lateral flexion was to 15 degrees with complaints of pain on the left side, and rotation was to 10 degrees without any complaints of pain. There were no additional limitations of motion due to pain, fatigue, weakness, or lack of endurance on repetitive use of the spine after three times. There was no history of acute episodes of excruciating low back pain during the last twelve months. There was moderate impairment of daily occupational activities due to his lower back condition. An October 2009 VA treatment record reveals complaints of discomfort with numbness and tingling of the entire front portion of his left leg. In December 2009, January 2010, and April 2010, the Veteran complained of pain radiating down both lower extremities with weakness, more so on the left. Upon physical examination, the Veteran had weakness and decreased sensation over the right lower extremity. Lasegue sign was positive at 60 degrees on the right and at 30 degrees on the left. Lumbago with radiculopathy down the lower extremities was diagnosed. In April 2010 the Veteran had an lumbar epidural steroid injection to relieve his pain. In June 2010 it was stated that the Veteran had "[i]ncreasing new" right lower extremity pain. At a July 2010 neurology consult, it was stated that the Veteran had a history of sciatica, was status post three laminectomies, and was referred to the neurology consult because of burning and numb feet. A history of left-sided sciatic and low back pain that was treated with epidural injection was noted, but he recently developed non-radiating right back pain. The impression was hyperalgesic diabetic neuropathy and low back pain; however, it was noted that in the absence of radiation, it was unlikely that it was radicular. A July 2010 pain management progress note indicated that the Veteran complained of pain over the lower back radiating down both lower extremities; it radiated more down the left lower extremity, since 1970. The pain was a 5 out of 10. He reported weakness in the lower extremities but more on the left side. He denied any urinary or bowel problems related to his back pain. On physical examination, he had weakness and decreased sensation over the right lower extremity and he was more tender on the right side. After the Veteran's MRI study for new onset of lumbar radiculitis, he was assessed with lumbago with radiculopathy down the lower extremities, bilateral sacroiliac joint arhtralgia that was more painful on the right side, and lumbar facet arthralgias. In August 2010, the Veteran requested an injection on the right side for his pain. He reported weakness in the lower extremities more so on the left side. He denied any urinary or bowel problems related to his back pain. He had weakness and decreased sensation over the right side. In September 2010 it was stated that he had an increase in back pain. The Veteran was afforded a new VA examination in May 2012. His range of motion for flexion was to 70 degrees with pain beginning at 70 degrees, extension was to 15 degrees with pain beginning at 15 degrees, bilateral lateral flexion was to 15 degrees with pain beginning at 15 degrees, and bilateral rotation was to 20 degrees with pain beginning at 20 degrees. After repetitive testing the Veteran did not have any additional limitations in range of motion. The Veteran had functional loss after repetitive use manifested by less movement than normal; pain on movement; and interference with sitting, standing, and/or weight bearing. There was no localized tenderness, guarding, or muscle spasm. Sensation to light touch testing on the right side of the upper anterior thigh, thigh/knee, and lower leg/ankle was normal but his left side was decreased on the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes; his right foot/toes were decreased. The Veteran's straight leg raising tests was negative bilaterally and the Veteran only had moderate numbness of the left lower extremity. The Veteran had radiculopathy bilaterally in the femoral nerve and sciatic nerve; the severity was mild on the right side and moderate on the left side. He did not have any other neurologic abnormalities such as bowel or bladder problems. The Veteran did have intervertebral disc syndrome, but he did not have any incapacitating episodes over the past 12 months due to intervertebral disc syndrome. Back Disability After a careful review of the evidence, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for degenerative disc disease with compression deformity of L-2. In order for the Veteran to be granted a higher rating under the General Rating Formula, forward flexion of the thoracolumbar spine must be limited to 30 degrees or less or there must be favorable ankylosis of the entire thoracolumbar spine. However, the Veteran's range of motion for flexion was 70 degrees in February 2006, March 2007, and May 2012; 45 degrees in August 2006; and 40 degrees in September 2009. In addition, there is no evidence that the Veteran had additional limitations of motion after repetitive use or during flare-ups during the pendency of the appeal. With regard to giving proper consideration to the effects of pain and other symptoms in assigning a disability rating per DeLuca and Mitchell, supra, the reports from the examinations and treatment records document consideration of these principles and there is no indication that increased compensation would be warranted under these principles as such factors do not result in additional functional loss that that resulted in a higher limitation of motion. In August 2006, the Veteran reported subjective complaints of stiffness in the morning and pain but there was no evidence of functional loss due to subjective complaints of pain and there was no evidence of incoordination, weakness, or fatigability. The Veteran reported in September 2009 that repetitive motion increased pain however, the objective evidence was that there were no additional limitations due to pain, fatigue, weakness, or lack of endurance. In May 2012 it was noted that the Veteran's functional loss due to pain was less movement but there was no evidence of tenderness, guarding, or muscle spasm. Thus, the Board finds that the currently-assigned 20 percent rating contemplates any disability due to pain on limitation of motion. Moreover, since the Veteran had range of motion for flexion anywhere from 40 degrees to 70 degrees he, by definition, does not suffer from lumbar ankylosis. Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Thus, the Board finds that there is no evidence in the Veteran's VA treatment records, private treatment records, and VA examinations that his degenerative disc disease with compression deformity of L-2 meets the criteria for the next higher disability rating. The Board also finds that a higher rating is not warranted under the criteria for intervertebral disc syndrome as there has been no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period during the appeal period. 38 C.F.R. § 4.71a Diagnostic Code 5243. While the Veteran has been diagnosed with intervertebral disc syndrome, the evidence does not show, and he has not contended, that he has experienced any incapacitating episodes during the appeal period. Moreover, none of his treatment records demonstrate incapacitating episodes requiring physician prescribed bed rest. Moreover, at the August 2006 VA examination, September 2009 VA spine examination, and May 2012 VA examination, he denied any incapacitating episodes during the past 12 months. Accordingly, the Veteran does not warrant a higher rating under any Diagnostic Code for rating back disorders. Essentially, a higher rating is not in order because there is no evidence that range of motion for forward flexion of the thoracolumbar spine is limited to 30 degrees or less, that the back disability involves favorable ankylosis of the entire thoracolumbar spine, or that the condition results in incapacitating episodes. With respect to neurologic abnormalities pursuant to Note (1) of the General Rating Formula, the Veteran is already in receipt of separate ratings based on neurological symptoms for his bilateral lower extremity radiculopathy, which will be discussed in further detail below. Additionally, the Board finds that there are no other neurological impairments associated with the Veteran's back disability. Specifically, the record, to include the Veteran's statements, is entirely negative for any bowel or bladder impairment. Specifically, it was stated in August 2006, August 2008, September 2009, August 2010, and May 2012 that he denied any bowel or bladder problems due to his degenerative disc disease with compression deformity of L-2. Furthermore, while the Veteran has erectile dysfunction, such has been associated with his service-connected diabetes mellitus. Therefore, the Board finds that separate ratings for neurological impairment other than the previously awarded ratings for radiculopathy of the bilateral lower extremities is not warranted. Radiculopathy of the Bilateral Lower Extremities By the way of an April 2010 rating decision the Veteran was granted service connection for left lower extremity radiculopathy with an initial disability rating of 10 percent, effective July 9, 2009. A July 2012 rating decision granted the Veteran an increased rating of 20 percent for left lower extremity radiculopathy effective December 27, 2010, and granted the Veteran service connection for right lower extremity radiculopathy with a 10 percent disability rating effective December 27, 2010. The Board notes that the effective date of December 27, 2010, is the date the VA received the Veteran's VA Form 21-4138 Statement in Support of Claim for bilateral lower radiculopathy secondary to degenerative disc disease. As noted above, service-connected left lower extremity radiculopathy and service-connected right lower extremity radiculopathy are part and parcel of the appeal before the Board and though the Veteran did not appeal the April 2010 or July 2012 rating decisions they will be herein below be considered. The Board notes that the Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Diagnostic Code 8520 provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. 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, is rated 80 percent disabling. Diagnostic Code 8526 provides that mild incomplete paralysis of the femoral nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; and severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the femoral nerve, paralysis of the quadriceps extensor muscles, is rated 40 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Left Lower Extremity Radiculopathy Affecting the Sciatic Nerve The Veteran's left lower extremity radiculopathy affecting the sciatic nerve is currently evaluated as 10 percent disabling, effective July 9, 2009, and 20 percent disabling, effective December 27, 2010. For the reasons discussed herein, the Board finds that he is not entitled to higher ratings or earlier effective dates for the separate assigned ratings. In this regard, there is no evidence or complaint pertaining to the Veteran's left lower extremity prior to March 2007. However, in March 2007, the Veteran's private chiropractor stated that one of the Veteran's chief complaints was leg numbness. In addition, to his subjective complaints of numbness in the left lower extremity the objective evidence demonstrated neurological symptoms in the left lower extremity; the pin wheel testing showed a decrease in sensitivity of the left posterior thigh at L4 and L5 dermatomes, a decrease in the S1 dermatome at the left toe, left hamstring weakness, left mild foot drop, and the left foot mildly gave out with the toe walking test. He was diagnosed with sciatica. As a result of the March 2007 findings, the Veteran was afforded a VA nerves examination in June 2007, at which time he reported numbness of the left leg and calf on both sides since his surgery in 1995. On physical examination, both lower limbs were negative for any neurological deficiencies and sensation to pinprick and light touch were present in all dermatomes. There was no evidence of foot drop nor was there any neurological deficiency in either of the lower limbs. The VA examiner stated that he reviewed the private and VA treatment reports and there was no manifestation in the lower extremities at the present time and, as such, not connected to degenerative disc disease. Moreover, an August 2008 VA treatment record noted that there was no radiation, weakness, or paresthesia associated with the Veteran's back disability. However, a July 29, 2009 record reveals a diagnosis of sciatica with decreased sensation of the left foot and lumbar radiculitis. An EMG of the same date revealed electrodiagnostic evidence consistent with chronic left L5/S1 radiculopathy with ongoing axonal loss and left sural neuropathy. Additionally, all evidence dated subsequent to such EMG findings continue to show left lower extremity radiculopathy. Specifically, a September 2009 VA treatment record revealed decreased monofilament/light touch of the left foot. Moreover, a September 2009 VA examination revealed complaints of numbness, paresthesia, and dysesthesia of the left leg and foot, which was manifested by tingling and numbness, and physical examination showed decreased vibrations, pain, and light touch to the left toes with affected nerves of L5/S1. It was also noted that electrodiagnostic evidence was consistent with chronic left L5/S1 radiculopathy with ongoing axonal loss and left sural neuropathy. Additionally, subsequent VA treatment records dated through 2010 continued to show complaints of pain radiating down both lower extremities with weakness. Based on the foregoing, the Board finds that the Veteran is not entitled to a separate rating for his left lower extremity radiculopathy affecting the sciatic nerve prior to July 9, 2009. In this regard, while his March 2007 private physician noted neurological findings referable to the left lower extremity, subsequent examination in June 2007 and August 2008 failed to demonstrate radiculopathy of the left lower extremity. Moreover, the first objective evidence of radiculopathy was on July 29, 2009, when an EMG confirmed a finding of chronic left L5/S1 radiculopathy with ongoing axonal loss and left sural neuropathy. In order for the Veteran to warrant a higher rating for his left lower extremity radiculopathy affecting the sciatic nerve there needs to be evidence prior to December 27, 2010, of moderate incomplete paralysis of the sciatic nerve, and since December 27, 2010, of moderately severe incomplete paralysis of the sciatic nerve. However, the Board finds that the Veteran does not warrant a higher rating for his left lower extremity radiculopathy affecting the sciatic nerve at any point during the pendency of the appeal. Prior to December 27, 2010, the Veteran's left lower extremity radiculopathy affecting the sciatic nerve was manifested by complaints of decreased sensation, weakness, tingling, numbness, paresthesia, and dysesthesia with objective evidence of decreased vibrations, pain, and light touch. Muscle strength was 5 and, while muscle atrophy was present, there was no abnormal muscle tone or bulk and no function of the joint was affected by the nerve disorder. Moreover, there were no tremors, tics, or other abnormal movements. Therefore, as the Veteran's left lumbar radiculopathy for such period resulted in no more than decreased sensation with mild muscle atrophy, the Board finds that such does not more nearly approximate moderate incomplete paralysis of the sciatic nerve. As of December 27, 2010, the Veteran's left lower extremity radiculopathy affecting the sciatic nerve is manifested by decreased sensation to light touch, moderate numbness, 4/5 muscle strength in the ankle and toes, absent and hypoactive reflexes in the ankle and knee, respectively. Moreover, at the May 2012 VA examination, such was determined to result in moderate incomplete paralysis. Therefore, as the Veteran's left lumbar radiculopathy affecting the sciatic nerve for such period resulted in no more than decreased sensation with weakened muscle strength, and abnormal reflexes, the Board finds that such does not more nearly approximate moderately severe incomplete paralysis of the sciatic nerve. In sum, the Board finds that the Veteran's left lower extremity radiculopathy affecting the sciatic nerve does not warrant a rating in excess of 10 percent for the period from July 9, 2009, to December 26, 2010, or in excess of 20 percent as of December 27, 2010. Right Lower Extremity Radiculopathy Affecting the Sciatic Nerve The Board finds that the Veteran's right lower extremity radiculopathy affecting the sciatic nerve warrants a 10 percent disability rating effective July 10, 2010; however, he does not warrant a rating higher than 10 percent since July 10, 2010. When the July 2012 rating decision granted the Veteran service connection for right lower extremity radiculopathy and assigned a 10 percent disability rating, effective December 27, 2010, the effective date was based on the date the VA received the Veteran's claim for bilateral lower radiculopathy secondary to degenerative disc disease. However, the Board finds that the first objective evidence confirming the present of right lower extremity radiculopathy is the July 10, 2010, MRI showing radiculopathy of the lower extremities. While the Veteran complained of right lower extremity symptoms prior to such date, to include in treatment records dated from December 2009 to June 2010, such was not confirmed to be the result of his back disability until the July 2010 MRI. The Board also finds that the Veteran's right lower extremity radiculopathy affecting the sciatic nerve does not warrant a rating in excess of 10 percent since July 10, 2010. In order for the Veteran to warrant a higher rating there needs to be evidence of moderate incomplete paralysis of the sciatic nerve; however, it has only been described as mild (specifically at the May 2012 VA examination). Furthermore, such has been manifested by decreased sensation, weakness without decreased muscle strength, or abnormal reflexes. Thus, the Board finds that the Veteran's right lower extremity radiculopathy affecting the sciatic nerve does not warrant a rating in excess of 10 percent. In sum, the Board finds that the Veteran's right lower extremity radiculopathy warrants a 10 percent disability rating, effective July 10, 2010; however, there is no evidence that he warrants a rating in excess of 10 percent since July 10, 2010. Left and Right Lower Extremity Radiculopathy Affecting the Femoral Nerve The Board observes that the May 21, 2012, VA examination revealed radiculopathy of the bilateral lower extremities affecting the femoral nerve in addition to the sciatic nerve. Specifically, the examiner determined that the radiculopathy involved L2/L3/L4 nerve roots (femoral nerve) as well as the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of both lower extremities. In this regard, the examiner indicated that the Veteran's left side radiculopathy was moderate in nature while his right side radiculopathy was mild in nature. While the Veteran's subjective complaints and physical findings are similar regarding both sets of nerves, the fact remains that the femoral and sciatic nerves affect different parts of the lower extremities. Specifically, as noted in Diagnostic Code 8520, the sciatic nerve involves the foot and knee while, as indicated in Diagnostic Code 8526, the femoral nerve involves the quadriceps. In this regard, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Therefore, the Board finds that the Veteran is entitled to separate ratings of 20 percent and 10 percent for left and right lower extremity radiculopathy affecting the femoral nerve, respectively, as of May 21, 2012. Other Considerations The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his degenerative disc disease with compression deformity of L-2 with radiculopathy of the bilateral lower extremities. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected degenerative disc disease with compression deformity of L-2 and bilateral lower extremity radiculopathy; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. 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 Chief Benefits Director 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). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 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. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first 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. 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 Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected degenerative disc disease with compression deformity of L-2 with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. The Board finds that the Veteran's 20 percent rating contemplates his functional limitations caused by his degenerative disc disease with compression deformity of L-2, to include limitation of motion with pain. Moreover, he has been assigned separate ratings for his neurologic impairment of the left and right lower extremities affecting the sciatic and femoral nerves. There are no additional symptoms of his degenerative disc disease with compression deformity of L-2 that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the instant case, the Veteran has been awarded a TDIU as of October 6, 2010. As the appeal period stems from the initial award of service connection for the Veteran's back disability, i.e., March 8, 2006, the Board has considered whether, in relation to the instant claim, a claim for a TDIU was raised prior to such date. In this regard, the record reflects that the Veteran was primarily a truck driver. It was noted at the August 2006 VA examination, that the Veteran's employment was not affected by his back disability. Additionally, while it was noted in the March 2007 private treatment record and the June 2007 VA examination report that his work was affected, the Veteran reported that he had a new job and had only stopped driving trucks nine months previously in an August 2008 VA treatment record. The Board notes that the Veteran reported that he was unemployed as a truck driver in July 2009 and that his work was affected in September 2009, the September 2009 VA examiner determined that there was only moderate impairment of his daily occupational activities due to his lower back disability. Consequently, while the Veteran's work had been affected, at times, by his back disability prior to October 2010, the evidence fails to show that such rendered him unemployable. Therefore, the Board finds that a TDIU claim was not raised prior to October 6, 2010, and such issue need not be further addressed. In reaching this decision, the Board has considered the benefit of the doubt doctrine. To the extent that the Board has denied higher or separate ratings for the Veteran's back disability with radiculopathy of the bilateral lower extremities affecting the sciatic and femoral nerves, the Board finds that the preponderance of the evidence is against such claims. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating in excess of 20 percent for degenerative disc disease with compression deformity of L-2 is denied. A separate rating in excess of 10 percent from July 9, 2009, to December 26, 2010, and in excess of 20 percent as of December 27, 2010, for left lower extremity radiculopathy affecting the sciatic nerve is denied. As of July 10, 2010 a separate rating of 10 percent, but no higher, for right lower extremity radiculopathy affecting the sciatic nerve is granted, subject to the laws and regulations controlling disbursement of VA monetary benefits. As of May 21, 2012, a separate rating of 20 percent, but no higher, for left lower extremity radiculopathy affecting the femoral nerve is granted, subject to the laws and regulations controlling disbursement of VA monetary benefits. As of May 21, 2012, a separate rating of 10 percent, but no higher, for right lower extremity radiculopathy affecting the femoral nerve is granted, subject to the laws and regulations controlling disbursement of VA monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs