Citation Nr: 1328819 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-32 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the period prior to March 26, 2012, and in excess of 20 percent therefrom, for the chronic orthopedic manifestations of intervertebral disc syndrome (IVDS), status post-operative. 2. Entitlement to a rating in excess of 10 percent for the period prior to November 4, 2010, and in excess of 40 percent between November 4, 2010 and September 14, 2011, for decreased reflexes of right lower extremity. 3. Entitlement to a rating in excess of 10 percent for the period prior to September 14, 2011, for decreased reflexes of left lower extremity. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. An April 2007 rating decision granted service connection for the post-operative residuals of T11-12 myelopathy and decreased reflexes of each lower extremity. An initial 10 percent rating was assigned for each disability, effective in December 2003. A May 2007 RO letter informed the Veteran of the decision. In June 2007, the Veteran requested higher ratings for his disabilities of the spine and lower legs. A November 2007 rating decision denied entitlement to service connection for hypertension and depression as due to the T11-12 myelopathy. A December 2010 rating decision awarded an increased rating from 10 to 40 percent for decreased reflexes of the right lower extremity and special monthly compensation (SMC) for loss of use of the right foot due to foot drop, both effective November 4, 2010. A November 2011 rating decision granted entitlement to a total disability rating on the basis of individual unemployability (TDIU), effective November 4, 2010. An October 2012 rating decision awarded an increased rating from 10 to 20 percent for the orthopedic manifestations of IDS, effective March 26, 2011 and awarded a combined 100 percent rating for each lower extremity due to bilateral foot drop, effective September 14, 2011. SMC based on the loss of use of both feet also was granted as of September 14, 2011. The Veteran appeared at a Board hearing in May 2013 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file and has been reviewed. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. All records in the Virtual file were considered by the AMC while the case was on remand. The issue of entitlement to a compensable rating for skin disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence of record shows the Veteran's depressed mood is a symptom of his service-connected PTSD. 2. The preponderance of the evidence of record is against a finding of any incapacitating episodes of IVDS during the rating period on appeal. 3. For the period prior to September 14, 2011, the preponderance of the evidence of record shows the chronic orthopedic manifestations of IVDS to have been painful motion on forward flexion greater than 60 degrees and combined range of motion (ROM) greater than 120 degrees of the thoracolumbar spine. 4. For the period since September 14, 2011, the preponderance of the evidence of record shows the chronic orthopedic manifestations of IVDS to have included painful motion on forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees. 5. The Veteran's lay testimony shows that he has experienced frequent and unexpected falls due to bilateral lower extremity weakness. 6. The preponderance of the medical evidence of record shows loss of use of both lower extremities as of November 4, 2010. CONCLUSIONS OF LAW 1. The requirements for an initial evaluation in excess of 10 percent for the period prior to September 14, 2011, and in excess of 20 percent therefrom, for the orthopedic manifestations of post-operative IVDS at T-11-T12 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the spine (General Formula), Diagnostic Code (DC) 5243 (2012). 2. With resolution of reasonable doubt in the Veteran's favor, the requirements for an initial evaluation of 20 percent, but no higher, for right and left lower extremity weakness have been met effective August 4, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 3. The requirements for an initial evaluation higher than 40 percent for right lower extremity weakness as of November 4, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 4. With resolution of reasonable doubt in the Veteran's favor, the requirements for an initial evaluation of 40 percent, but no higher, for left lower extremity weakness have been met, effective November 4, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 5. The requirements for an initial total evaluation for right and left lower extremity weakness for the period prior to September 14, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 6. The requirements for entitlement to service connection for depression as a separate entity, to include as secondary to service-connected T-11-T12 myelopathy, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2010 of the information and evidence needed to substantiate and complete a claim of service connection, to include notice of what part of that evidence is to be provided by the claimant, and adequate notice of how disability ratings and effective dates are assigned in the event service connection is granted. The Board finds the letter was dully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the May 2013 hearing, the undersigned identified the issues and made certain that the Veteran's bases for his claims were accurately stated and documented. Further, the undersigned also held the record of the hearing open for 30 days so suggested evidence could be obtained and submitted. Neither the Veteran nor his representative as voiced any disagreement with how the hearing was conducted. Hence, the Bryant notice requirements were complied with. Id. Regarding the duty to notify, a July 2007 letter informed the Veteran of how to substantiate his claim, and of the division of responsibility between VA and a claimant in developing an appeal. The communication also explained how VA establishes disability ratings and effective dates. Such letter preceded the adverse determination on appeal. Accordingly, no further development is required with respect to the duty to notify. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. In this regard, the RO obtained the Veteran's service treatment records and VA outpatient records, and arranged a mental disorder examination, which was conducted in August 2007. The Veteran is in receipt of Social Security disability benefits. The RO also inquired of the Social Security Administration (SSA) for any records extant related to those benefits. The SSA informed the RO the related records were no longer available, as they had been destroyed. Neither the Veteran nor his representative asserts that there is additional evidence to be obtained or that VA failed to assist the Veteran with his claims. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service Connection Claim The Veteran has asserted that his depression is due to service-connected his spine disability, and continued to do so at the hearing. A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis The Veteran's VA outpatient records note both his denial of depression and reports of depressed mood. As earlier noted, service connection is in effect for the post-operative residuals of T-11-T-12 myelopathy and PTSD. Thus, Wallin Elements 1 and 2 are shown by the evidence; therefore, only Element 3 must be addressed. VA outpatient records dated in December 2004 note the Veteran denied depression, although he was taking Trazodone for insomnia. The treating physician, however, noted the Veteran might have more symptoms of PTSD than previously realized. The physician noted the Veteran was not interested in consulting psychiatry or trying other medications. The August 2007 examination report reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran had not had any prior psychiatric hospitalization or outpatient treatment, and he also noted the Veteran's medical disorders of record, to include his spinal cord compression and myelopathy. The Veteran reported intermittent self-limited depressive symptoms of mild severity and duration that he reported had existed since 1994 when he lost his job. He adjusted fully with or without depressive symptoms, and they did not impact his social functioning. The Veteran reported his hobbies as woodworking and fishing, which he continued to enjoy at the time of the examination. The Veteran reported his symptoms as intermittent self-limited feelings of sadness and decreased energy. They were limited to times when his low back pain escalated or when he was unable to accomplish physical tasks. He denied having the reported depressive symptoms for two consecutive days, and he also denied that they impacted his social functioning. The examiner noted the Veteran's history was not suggestive of mania, hypomania, or psychosis. Mental status examination revealed the Veteran as a somewhat defensive middle-aged male. He was amiable, his speech was normal in all aspects. There was no impairment of thought process or communication. The examiner noted no abnormal findings during the examination. The examiner noted that, while the Veteran's chronic pain largely interfered with his activities, his depressive symptoms did not at the time of the examination. No diagnosis was entered in Axis I. This means that the examiner found no evidence of a mental disorder at the time of the examination. In his Notice of Disagreement, the Veteran asserted that the examiner did not really inquire into the impact of his depression. In his Substantive Appeal (VA Form 9), he asserted he was depressed daily, especially when he thought about the things he no longer could do, like pick up his grandchildren. The Board acknowledges the Veteran's assertions but also notes that the mental health examiner rendered findings based on the Veteran's reports and his outpatient records. The Board has already set forth the outpatient entries where the examiner considered PTSD to be the Veteran's main pathology. In May 2010, the Veteran claimed entitlement to service connection for PTSD. The October 2010 PTSD examination report reflects mental status examination noted the Veteran's mood as constricted and sad; and, he was tearful on several occasions. There was also was evidence of depressed mood and sleep disorder. The January 2011 rating decision reflects service connection for PTSD with an initial 50 percent rating. The rating decision noted the Veteran's PTSD-related symptoms, which included depressed mood. As discussed earlier, the August 2007 examination report noted the presence of intermittent depressive symptoms that were of insufficient severity and severity to meet the diagnostic criteria for an Axis I diagnoses. The December 2004 outpatient entry noted PTSD superimposed over any depressive symptoms the Veteran might have had, and the October 2010 VA examination confirmed PTSD as the cause of the Veteran's depression, for which he is compensated. The Board notes that the rating schedule precludes an award of service connection for multiple disabilities predicated on the same symptoms, as such constitutes pyramiding. 38 C.F.R. § 4.14. In light of the above, the Board is constrained to find the preponderance of the evidence is against entitlement to service connection for depression as an independent disability. 38 C.F.R. §§ 3.310, 4.14. Increased Ratings Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21. The Board will consider entitlement to staged ratings to compensate for times since the effective date for grant of service connection when either disability may have been more severe than at other times during the course of the claim on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court Of Appeals For Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional ROM loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). Analysis The April 2007 rating decision reflects the RO evaluated the Veteran's low back disability under DC 5243, concerning IVDS. See 38 C.F.R. § 4.71a, General Formula. The General Formula requires IVDS to be rated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Id. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note 1. When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id., Note 2. The General Formula provides that the rating criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. The criteria for a 30 percent evaluation pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent rating is warranted where lumbar spine forward flexion is 0 to 30 degrees or less. Id. A rating higher than 40 percent is warranted only where there is ankylosis of the thoracolumbar spine. Id. The RO evaluated the Veteran's lower extremity weakness analogous to incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. DC 8520 provides the rating criteria for paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. 38 C.F.R. § 4.124a, DC 8520. In this case, the increased rating claim was received in June 2007. Although prior to the rating period on appeal, the Board does note that a July 2004 VA examination report contains a finding from the examiner that the Veteran had not experienced any incapacitating episodes over the prior 12-month period. A November 2006 outpatient entry notes the Veteran's complaints of low back pain that caused lower extremity weakness and dysfunction. No objective findings were noted. A July 2007 entry notes the Veteran was treated after he stuck himself with a chisel. This indicates to the Board that the Veteran was still active. At an August 2007 VA examination, the Veteran reported complaints of constant daily pain of the lower thoracic and lumbar spine of 5/10 intensity that radiated to both legs, left greater than right. His medication included Hydrocone as needed for pain relief. He also reported random pain, rated at 7/10 in intensity, that was triggered by prolonged sitting, and which could last three hours to all day. Rest or exercise provided relief. He did not report any flare-ups or bowel or bladder involvement. He had intermittent numbness in both buttocks. He walked unaided with the aid of a cane, and reported that he could walk for 200 yards. He denied use of a back brace. The Veteran reported multiple falls, with the last one being two months prior to the examination. He denied any impact of his low back disability on his activities of daily living, and he was still able to drive. Physical examination revealed tenderness in the lumbar paraspinal muscles without evidence of spasm or guarding. The spinal contour was preserved and the Veteran's gait was normal. Physical examination revealed normal ROM in all planes, except for extension, which was to 20 degrees. See 38 C.F.R. § 4.71a, Plate V. There was pain ensuing on forward flexion at 70 degrees; backwards extension at 20 degrees; at the end point, 30 degrees, on left lateral flexion; and at 20 degrees, bilaterally, on lateral rotation. The objective findings on clinical examination show that the Veteran's orthopedic symptoms more nearly approximate the assigned 10 percent rating as of the August 2007 examination. 38 C.F.R. § 4.71a, General Formula. The Board finds a higher rating was not met or approximated, based on the above findings. Again, the Veteran's low back did demonstrate pain throughout the end the end points. Hence, the assigned 10 percent is deemed compensation for any functional loss due to pain, etc. The examiner noted that repetitive use and resistance testing did not reveal any additional loss of ROM due to pain, etc. Thus, a higher rating is not indicated on that basis. 38 C.F.R. §§ 4.40 and 4.45. Neurological examination revealed normal sensation to light monofilament touch, and motor examination revealed normal tone and strength without atrophy. Deep tendon reflexes were 1+/4 at the knees with distraction bilaterally, and absent in both ankles. Lasegue's sign was normal. The examiner noted there were no incapacitating episodes over the prior 12-month period. The examiner noted the Veteran to have a right foot drop that was related to a later injury not incurred in service. This notation is inconsistent with the totality of the evidence of record, as later medical evidence reveals the right foot drop is in fact part of the Veteran's spinal myelopathy. In light of this fact, affording all benefit of the doubt to the Veteran, the Board finds that his associated right lower extremity neurological symptoms approximated moderate incomplete paralysis of the sciatic nerve and a 20 percent rating, as of August 4, 2007, the date of the examination. 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. For reasons discussed later in this decision, the Board finds likewise with respect to the left lower extremity. Indeed, later medical evidence shows that the Veteran's lower extremity weakness has been bilateral all along. The Board does not, however, find that a rating in excess of 20 percent was met or approximated, as the examiner noted normal sensation and strength without atrophy in both lower extremities. Further, the Veteran reported that he was still able to drive. On his October 2008 VA Form 9, the Veteran asserted the spine examiner did not go into great detail as to his day-to-day activities, the things his back disability prevented him from doing, and the fact he had to adjust his life due to his back disability. In response to this, the Board notes that there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). The Court has stated that examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. The Board finds no insufficiency in the August 2007 spine examination. The examination report notes the Veteran's sitting and walking limitations, and the fact the Veteran denied any impact on his activities of daily living. The examiner noted he did not assess occupational impairment because the Veteran did not work. Further, as set forth above, the examiner's findings and notations were sufficient for the Board to allow an increased rating for both lower extremities. The RO arranged another examination later during the appeal period. The November 2010 examination report notes the history of the Veteran's low back disability, and that his current treatment included Hydrocondone. The Veteran reported weekly flare-ups of moderate severity that lasted for hours. During flare-ups, his pain and functional impairment increased, while his motion decreased. Precipitating factors for the flare-ups were prolonged sitting, standing, ambulation, and overexertion. The Veteran located his pain at the mid-thoracic to lower back regions, and he described it as aching and burning in nature. He also reported a history of fatigue, decreased motion, weakness to include leg and foot weakness, and spasm; but he denied any history of bowel or urine incontinence or numbness. His pain radiated to the lower extremities, more so on the right. The examination report notes that the Veteran had several incapacitating episodes of thoracic back pain, but the examiner did not note the length of any incapacitating episodes. Further, as noted earlier, the Board finds no entries in the VA outpatient records to the effect that a physician prescribed bed rest for low back symptoms. Thus, the Board continues to review the Veteran's appeal on the basis of the chronic orthopedic and neurological manifestations. Physical examination revealed the Veteran's posture and head appearance as normal and symmetrical. His gait was abnormal, as he had a right foot drop due to weakness in the ankle dorsiflexors and plantarflexors. No abnormal spinal curvature or ankylosis was noted. There was no objective evidence of spasm, atrophy, guarding, tenderness, or weakness of either side of the spine. ROM on forward flexion of the thoracolumbar spine was from 0 to 90 degrees; backward extension was to 10 degrees; lateral flexion was to 30 degrees bilaterally; and, lateral rotation was to 15 degrees bilaterally, with objective evidence of pain on motion. The Board finds the objective findings on clinical examination show the Veteran's orthopedic symptoms continued to more nearly approximate the assigned 10 percent rating. 38 C.F.R. § 4.71a, General Formula. A higher rating was not met or approximated, as the Veteran's thoracolumbar spine motion on forward flexion was greater than 0 to 60 degrees, and combined ROM was greater than 120 degrees. Id. Further, the examiner noted that while repetitive use testing revealed pain, there was no additional loss of ROM. Hence, there is no factual basis for an increased rating on that basis. See 38 C.F.R. §§ 4.40 and 4.45. Neurological examination revealed absent knee jerk reflexes bilaterally, but normal ankle jerks and plantar flexors bilaterally. Motor examination of the hips and knees was normal at 5/5 throughout. The right ankle dorsi- and plantarflexors were normal at 5/5; but, 1/5 on the left, and absent at the left great toe. Muscle tone was normal, but there was muscle atrophy. The examiner noted measurement was not necessary to validate atrophy, as "right ankle dorsiflexors and plantarflexors are weak resulting in obvious foot drop . . . ." Lasegue's and Waddell's signs were negative. The examiner also conducted a peripheral nerve examination at the request of the RO, most of which is duplicative of the neurological examination findings just noted above. The examiner noted the Veteran's mobility problems due to the right foot drop, with resultant gait abnormality. The examiner diagnosed paralysis of the sciatic nerve due to thoracic myelopathy. Upon receipt of the examination report, a December 2010 rating decision awarded an increased rating from 10 to 40 percent for the right lower extremity and SMC based on the loss of use of the right foot, both effective November 4, 2010. The Board will now discuss why it also applies this finding to the left lower extremity as well. A September 2011 VA general examination conducted to assess the Veteran's employability reflects a finding that both the right and lower extremity manifested foot drop with symptoms of bilateral lower extremity atrophy, and diminished reflexes, sensation, and motor function due to paralysis of the sciatic nerve which were associated with the post-operative residuals of the T-11-12 myelopathy. The same examiner conducted a March 2012 examination. The examination report reflects the examiner noted a foot drop only with respect to the right foot, but he noted decreased strength, reflexes, and sensation bilaterally. In May 2012, the RO asked the examiner to explain the apparent inconsistency. In a May 2012 addendum, the examiner noted the Veteran's history showed he gradually developed numbness, weakness and loss of control of his lower extremities in a pattern of intermittent claudication. He explained: Hence, if you examine the Veteran during his maximum claudication there will be no control of his lower extremities with loss of reflexes and bilateral foot drop. Once recovered, the findings are as documented in [the March 2012] exam. There was only right foot drop during this exam and no lower extremity atrophy. The reason is, it is not a peripheral neuropathy but a myelopathy that is an upper neuron problem. The Veteran's outpatient records reflect his reports of falls due to unexpected weakness. His testimony at the March 2013 hearing also described that facet of his disability. In light of the VA examiner's explanation, the Board finds the evidence is at least in equipoise as to whether both of the Veteran's lower extremities have manifested that pathology, at least since November 4, 2010, when the RO awarded the increaser for the right lower extremity. The Board notes the November 2010 examination report noted a right foot drop; and, although the examiner noted the right ankle dorsi- and plantarflexors were weak, he assessed them as 5/5, which is normal. On the other hand, though no left foot drop was noted at the November 2010 examination, the left ankle dorsi- and plantarflexors were in fact 1/5, and the left great toe extensor was absent. Thus, the Board finds both lower extremities approximated a 40 percent rating as of November 4, 2010. The Board finds a 60 percent rating was not met or approximated by the objective findings at the November 2010 examination. Although bilateral foot drop was shown, there was no evidence of severe incomplete paralysis or marked atrophy. See 38 C.F.R. § 4.124a, DC 8520. Upon receipt of the May 2012 addendum, in an October 2012 rating decision, the RO determined that the Veteran lost use of both lower extremities as of the date of the September 2011 examination. Hence, the right lower extremity evaluation was increased from 40 to 100 percent, and the left from 10 to 100 percent, effective September 14, 2011. As discussed earlier, however, the Board finds the left lower extremity should have been evaluated at 40 percent as of November 4, 2010. For the reasons set forth earlier, the Board finds loss of use of the lower extremities and a 100 percent rating was not met or approximated prior to the September 14, 2011 examination. 38 C.F.R. § 3.400. The September 2011 VA examination noted the Veteran's complaints of constant low back pain. Physical examination revealed a slight, wide, fixed thoracic kyphosis, with normal musculature. ROM on forward flexion was normal at 0 to 90 degrees; backward extension was 0 degrees; lateral flexion was 0 to 30 degrees bilaterally; and, lateral rotation 0 to 45 degrees bilaterally. The Veteran was unable to extend backward, as he lost control on trying. There was objective evidence of pain on returning to 0 degrees from flexion and at the attempt at extension. The objective findings show that the orthopedic symptoms continued to approximate the assigned 10 percent rating. A higher rating was not met, as the Veteran's forward flexion was greater than 0 to 60 degrees, and combined motion was better than 120 degrees. The examiner noted that repetitive use testing showed an additional loss of ROM of 20 degrees, which still left the Veteran's flexion at greater than 0 to 60 degrees and combined motion greater than 120 degrees. The Board notes the finding of the thoracic kyphosis but also notes the findings of no spasm or guarding. Hence, a 20 percent rating was not met, even when considering additional functional impact due to pain on motion on repetition. 38 C.F.R. § 4.71a, General Formula. The examiner noted that there had not been any incapacitating episodes. A March 2012 VA examination indicated lumbar flexion to 65 degrees, extension to 0 degrees, lateral flexion left and right to 30 degrees, and rotation to 30 degrees bilaterally. There was no pain with movement except as to extension, where pain began at 0 degrees. On repetitive motion, flexion decreased to 70 degrees, and otherwise the ROM results remained unchanged. The Veteran reported constant mild to moderate low back pain that waxed and waned throughout the day. He had a constant electric sensation in both legs, and his lower extremities became numb with prolonged (30+ minutes) sitting, standing, or walking. He reported flare-ups of unspecified frequency and duration. Effective from the date of the March 26, 2012 VA examination, a 20 percent evaluation is in effect. The Board finds no support for an evaluation in excess of that amount during the period in question. Indeed, forward flexion of the spine exceeded 30 degrees at all times, even with repetition. Moreover, there was no showing of ankylosis. As noted earlier in the discussion of the legal standards applicable to this appeal, the Veteran is entitled to a staged rating where indicated by the evidence of record. Fenderson, 12 Vet. App. 119. As set forth in the discussions above, the Board has in fact allowed staged ratings where supported by the evidence. The Board notes a January 2011 rating decision granted entitlement to a total disability rating on the basis of individual unemployability (TDIU), effective November 4, 2010. The Board has also considered referral for higher ratings on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The evidence of record, however, shows the General Formula describes both the low back disability and its severity, as indicated in the discussions above. Further, the rating criteria provide for the Veteran's orthopedic and neurological symptoms. This means the Veteran's disability picture is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt and applied it where applicable. 38 C.F.R. §§ 4.3 and 4.7. ORDER Entitlement to an initial rating in excess of 10 percent for the period prior to March 26, 2012, and in excess of 20 percent for the period since March 26, 2012, for the chronic orthopedic manifestations of IVDS, status post-operative, is denied. Entitlement to an initial evaluation of 20 percent for right lower extremity weakness is granted, effective August 4, 2007, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial evaluation of 20 percent for left lower extremity weakness, effective August 4, 2007, and of 40 percent, effective November 4, 2010, is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to service connection for depression is denied. REMAND The Veteran initially claimed service connection for hypertension on a direct basis. He now also claims the benefit on a secondary basis as due to his service-connected PTSD. The claim has not been adjudicated on that basis. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will ensure the Veteran has received proper VCAA notice for a claim of entitlement to service connection on a secondary basis. 2. After the above is complete, send the claims file to an appropriate examiner and ask the examiner to opine as follows: is there at least a 50-percent probability the Veteran's hypertension is due to his service-connected PTSD? If the answer to the above question is negative, is there at least a 50-percent probability the Veteran's hypertension is aggravated, that is chronically worsened, by his service-connected PTSD? If so, please provide, the examiner is asked to specify the permanent measurable increase in severity of the hypertension that is due to the PTSD. Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. The examiner is asked to provide a full explanation for any opinion rendered. If an opinion cannot be rendered, the examiner must provide a full explanation as to why not. 3. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs