Citation Nr: 1329344 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-38 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for a low back disability. 2. Entitlement to a disability rating in excess of 10 percent for neuropathy of the left lower extremity prior to May 8, 2013. 3. Entitlement to a disability rating in excess of 40 percent for radiculopathy of the left lower extremity from May 8, 2013 to the present. 4. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to May 8, 2013. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which continued a 20 percent evaluation for degenerative changes of the lumbar spine at L5-S1. In January 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in December 2008. In October 2008, the RO increased the Veteran's disability rating for degenerative joint disease, degenerative disc disease, and spinal stenosis of the lumbar spine to 40 percent effective January 12, 2006 and granted a separate 10 percent evaluation for neuropathy of the left lower extremity effective January 12, 2006. Because the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In July 2012, the Veteran presented sworn testimony during a Travel Board hearing in Atlanta, Georgia, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In January 2013, the Board remanded the Veteran's claim of entitlement to an increased rating for his low back disability to the Appeals Management Center (AMC) for further evidentiary development, including obtaining VA treatment records and Social Security Administration (SSA) records and attempting to obtain private treatment records from Dr. G. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained the outstanding VA treatment records and SSA records. Additionally, the AMC sent the Veteran a letter in January 2013 asking him to provide a release of information for Dr. G. The Veteran did not respond to this letter or provide any such release. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. By a rating action dated in June 2013, the AMC increased the evaluation for the Veteran's radiculopathy of the left lower extremity to 40 percent effective May 8, 2013 and granted a separate 20 percent evaluation effective May 18, 2013 for the Veteran's radiculopathy of the right lower extremity, both associated with his low back disability. As these neurological impairments and the prior 10 percent evaluation for neuropathy of the left lower extremity are to be considered in the evaluation of the Veteran's low back disability, the Board will also consider whether the Veteran is entitled to increased ratings for his neuropathy and radiculopathies. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2012). The issues on appeal have been recharacterized to reflect this change. In a July 2013 rating decision, the AMC granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective May 8, 2013. As the Veteran is challenging the disability ratings assigned for his low back disability and associated neurological impairments dating back to January 2006, and the record raises assertions that he is unemployable because of these service-connected disabilities, the determination as to whether he is entitled to TDIU is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As such, the Board will also decide whether a grant of TDIU prior to May 8, 2013 is warranted. The issues on appeal have been recharacterized to reflect this change as well. The issue of entitlement to TDIU prior to May 8, 2013 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The Veteran's service-connected low back disability is manifested by forward flexion of no less than 20 degrees with pain, extension of no less than 0 degrees with pain, right lateral flexion of no less than 8 degrees with pain, left lateral flexion of no less than 8 degrees with pain, right lateral rotation of no less than 5 degrees with pain, and left lateral rotation of no less than 5 degrees with pain, with no evidence of unfavorable ankylosis or incapacitating episodes lasting 6 weeks or longer or associated bladder dysfunction. 2. Prior to May 8, 2013, the Veteran's service-connected left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve, with numbness and radiating pain and no evidence of muscle atrophy or complete paralysis of the sciatic nerve. 3. From May 8, 2013 to the present, the Veteran's service- connected left lower extremity radiculopathy has been manifested by no more than moderately severe incomplete paralysis of the sciatic nerve, with numbness and radiating pain and no evidence of marked muscle atrophy or complete paralysis of the sciatic nerve. 4. From May 8, 2013 to the present, the Veteran's service- connected right lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve, with numbness and radiating pain and no evidence of marked muscle atrophy or complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5243 (2012). 2. Prior to May 8, 2013, the criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8520 (2012). 3. From May 8, 2013 to the present, the criteria for a disability rating in excess of 40 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8520 (2012). 4. From May 8, 2013 to the present, the criteria for a disability rating in excess of 20 percent have been met for right lower extremity radiculopathy. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in March 2006 of the criteria for establishing an increased rating for his service-connected low back disability, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings in a July 2008 letter. After the July 2008 letter, the Veteran's claim was readjudicated in an October 2008 rating decision and December 2009 and July 2013 supplemental statement of the cases. These letters accordingly addressed all notice elements except that regarding effective dates. However, the Veteran has actively participated in his appeal and there is no indication that he was prejudiced by this lack of notice or lacked actual knowledge of how effective dates are assigned. Notably, he received this notice in an October 2008 letter for his TDIU claim. The March 2006 letter predated the initial adjudication by the RO in May 2006. Nothing more was required. VA's duty to assist has also been satisfied. The Veteran's service treatment records, SSA records, VA treatment records, and VA examination reports are in the file. No outstanding evidence has been identified that has not otherwise been obtained. The Board notes that the Veteran's VA treatment records indicate that he has been treated by Dr. G. for his low back disability. VA attempted to secure a signed release of information from the Veteran in a January 2013 letter. However, the Veteran failed to respond to this letter or provide such a release. Without a response or release from the Veteran, VA was unable to obtain these private treatment records. The Board notes that the duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As VA attempted to secure a release from the Veteran and he failed to provide one, the duty to assist has been fulfilled and the Board will adjudicate the Veteran's claims based on the available medical evidence. The RO provided the Veteran with a VA examination for his low back disability and associated radiculopathies most recently in May 2013. The examiner obtained a thorough history, including reviewing the claims file and medical records, and provided detailed physical examinations, including performing the appropriate range of motion testing. The opinion provided consideration of his lay complaints as well. Thus, the Board finds that the June 2013 spine examination is adequate for determining the disability rating for the Veteran's service-connected low back disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is no evidence indicating that there has been a material change in the severity of the Veteran's service- connected low back disability since he was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Thus, the Board finds that a new VA examination is not necessary at this time. Some discussion of the Veteran's July 2012 personal hearing is finally necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal were identified. Information was also elicited from the Veteran concerning his contentions regarding his low back symptoms. Notably, the Veteran's testimony, in part, triggered the Board's decision to remand the matter to obtain SSA records, updated VA treatment records, and a new VA examination. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran has been assigned a 40 percent evaluation under Diagnostic Code 5243 for his service-connected low back disability. He has also been assigned a 10 percent evaluation prior to May 8, 2013 and a 40 percent evaluation from May 8, 2013 to the present for his left lower extremity radiculopathy associated with his low back disability and a 20 percent evaluation effective May 18, 2013 for his right lower extremity radiculopathy associated with his low back disability. He seeks higher ratings for his low back disability and associated radiculopathies for the entire appeals period. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated under either 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 under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. 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. Id. Each range of motion is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (4) (2012). 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 ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited due to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin of 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 (0 degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (5) (2012). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. Id. at Note (1). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran was first examined for his low back disability in conjunction with his instant claim in April 2006. At that time, he complained of constant lower back pain radiating down the left leg with occasional numbness that he rated as 5 out of 10 and was worsened with bending, twisting, and walking for five to ten minutes. He also reported flare ups of pain seven times per month which he rated as 9 out of 10, but denied any incapacitating episodes in the past 12 months. The examiner observed normal gait, good posture, normal curvature of the lumbar spine, and no pain with percussion. She recorded range of motion measurements of forward flexion to 90 degrees with pain at 45 degrees, extension to 30 degrees, left lateral rotation to 20 degrees with pain at 20 degrees, right lateral rotation to 30 degrees, left lateral flexion to 20 degrees with pain at 20 degrees, and right lateral flexion to 30 degrees. There was no evidence of weakness, lack of endurance, fatigue, or incoordination with five repeated tests. X-rays showed degenerative changes of the lumbar spine, more marked at L5-S1 and possible spina bifida occulta at the level of S1 vertebra. The examiner diagnosed the Veteran with degenerative changes of the lumbar spine. The Veteran was next examined in November 2009. At that time, he complained of low back pain which radiated down both legs, stiffness, and weakness, with no fatigue or spasms. He used a cane and was only able to walk one quarter of a mile. He reported severe flare ups of pain, precipitated by turning, reaching down, bending, climbing stairs, walking, and standing and alleviated by rest and medication. He also reported incapacitating episodes occurring twice over the past 12 months for a total of 3 weeks. The examiner observed guarding and tenderness, normal posture and gait, no abnormal spinal curvatures or ankylosis, and no spasm. The Veteran had motor strength of 4 out of 5 for hip flexion and extension and 3 out of 5 for knee flexion and extension, ankle dorsiflexion and plantar flexion, and great toe extension, with normal muscle tone and no atrophy, and normal sensation and reflexes. The examiner recorded range of motion measurements of flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. There was no additional limitation with three repeated tests. An October 2008 MRI showed degenerative disease of the discs limited to the L4-L5 and L5-S1 levels with modic end plate changes at L5-S1 and some posterior facet disease at L4-L5. The examiner diagnosed the Veteran with multilevel spondylosis with L5-S1 bilateral osseous neural foraminal stenosis and suspected bulging disc and facet ligamentum flavum hypertrophy producing central spinal canal narrowing. She concluded that the Veteran's low back disability resulted in significant effects on his usual occupation due to increased absenteeism and decreased mobility, the inability to participate in sports and recreation, severe effects on shopping, exercise, and traveling, moderate effects on chores and dressing, and no effects on feeding, bathing, toileting, and grooming. The Veteran was then examined in February 2011. At that time, he complained of low back pain, fatigue, decreased motion, stiffness, weakness, spasm, left lower extremity numbness, and walking limited to one quarter of a mile. He denied any bowel or bladder impairment or erectile dysfunction and incapacitating episodes. The examiner observed normal posture, a wide-based gait, spasm, guarding, pain with motion, tenderness, and kyphosis, with no other abnormal spinal curvature including ankylosis. She recorded range of motion measurements of flexion to 20 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees without objective evidence of painful motion. There was objective evidence of painful motion with repetitive testing, but no additional limitation of motion after three repetitions of the range of motion. The right lower extremity had normal neurological testing and the left lower extremity had decreased pain or pinprick and light touch in the lateral leg and foot. The examiner diagnosed the Veteran with multilevel spondylosis with neuropathy and concluded that it was highly improbable that the Veteran would be able to maintain employment with his low back disability. The Veteran was next examined by a VA-QTC examiner in June 2011. At that time, he complained of moderate, constant pain, stiffness, fatigue, spasms, decreased motion, walking limited to 30 feet, and paresthesia, numbness, and weakness of the bilateral legs. He denied bowel problems and erectile dysfunction, but reported urinary frequency at night and incontinence which he related to his low back disability. The examiner concurred that his lumbar intervertebral disc syndrome caused bladder dysfunction with no pad needed. The Veteran reported flare ups of pain, weakness, and decreased range of motion, but denied any incapacitating episodes. He also indicated that he was unable to perform several activities of daily living and has been unable to work since August 2010. The examiner observed normal posture, antalgic gait, unsteady walking, muscle spasm, tenderness, guarding, scoliosis, and generalized muscle weakness, wasting, and atrophy of the bilateral legs. He recorded range of motion measurements of flexion to 20 degrees with pain at 20 degrees, extension to 5 degrees with pain at 5 degrees, right and left lateral flexion to 8 degrees with pain at 8 degrees, and right and left rotation to 5 degrees with pain at 5 degrees. There was no additional limitation of motion on repeated testing. Motor function was within normal limits and sensory function for the sciatic nerve was decreased bilaterally. The examiner diagnosed the Veteran with degenerative disc disease and spinal stenosis of the lumbar spine with lumbosacral strain and bilateral sciatic intervertebral disc syndrome and bilateral lower extremity neuropathy. He concluded that the Veteran had difficulty with prolonged ambulation, standing, sitting, lifting and carrying objects, performing arduous physical activities, bending, and stopping, which would severely impact his ability to engage in physical employment and moderately impact his ability to engage in sedentary employment. The Veteran was most recently examined in May 2013. At that time, he complained of recurrent low back pain that he rated as a 9 out of 10, marked difficulty turning and bending, walking limited to 10 feet, and pain and numbness in the lower extremities with the tingling and numbness primarily on the left side. He reported using a wheelchair regularly, a walker and/or brace occasionally, and a cane constantly. The examiner observed tenderness or pain on palpation, guarding or muscle spasm, and abnormal gait. He recorded range of motion measurements of flexion to 70 degrees with pain at 70 degrees, extension to 0 degrees with pain at 0 degrees, right and left lateral flexion to 10 degrees with pain at 10 degrees, and right and left lateral rotation to 5 degrees with pain at 5 degrees. The examiner noted that the Veteran was unable to stand up straight beyond 70 degrees of flexion and was unable to perform repeated motions due to severe pain. Motor strength was 4 out of 5 for all motions with no muscle atrophy. His bilateral knee reflexes were hyperactive without clonus and his bilateral ankle reflexes were absent. Sensory testing showed that light touch sensation was decreased or absent bilaterally and vibration sensation was absent bilaterally. The Veteran reported moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity and severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in the left lower extremity which the examiner attributed to the sciatic nerve. There were no other neurological impairments, including bowel or bladder impairment. A June 2012 CT showed degenerative changes, most marked at L4- L5, causing moderate central canal narrowing and no significant neural foraminal narrowing and a February 2013 x-ray showed moderate-to-severe spondylosis at L5-S1, mild spondylosis at L4-L5, and mild facet arthopathy at the lumbosacral junction. The examiner diagnosed the Veteran with degenerative lumbar spine disease with bilateral radiculopathy and concluded that he did not have intervertebral disc syndrome with incapacitating episodes. He concluded that the Veteran's low back disability rendered him unable to perform any physical or sedentary work. In addition to the VA examination reports, the medical evidence of record includes VA treatment records for the low back which are consistent with the VA examination findings. Notably, a February 2008 VA treatment record noted the Veteran's complaints of pain radiating into the bilateral lower extremities, consistent with the November 2009 VA examination, and a November 2007 VA treatment record referenced electrodiagnostic testing showing peripheral neuropathy. However, an earlier VA treatment record dated in August 2006 indicated that the Veteran had no signs of radiculopathy. Additionally, a June 2012 VA treatment record noted the Veteran's forward flexed spinal position, consistent with the May 2013 VA examination report. Finally, SSA records showed that the Veteran worked as a crane operator, supervised 6 to 14 people, and repaired cranes until September 9, 2010. In addition to the medical evidence, the Veteran has provided personal statements and hearing testimony, as well as hearing testimony from his wife. This lay evidence corroborates the functional limitations noted by the VA examiners, including his chronic complaints of low back pain, limited physical abilities, and inability to work due to his low back disability. Based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 40 percent for his lumbar spine disability. There is no evidence of unfavorable ankylosis of any part of or the entire spine to warrant an increased rating of 50 or 100 percent. Notably, there is no evidence of ankylosis prior to a June 2012 VA treatment record showing that the Veteran's posture was forward flexed. However, there is no evidence that this constitutes unfavorable ankylosis for VA compensation purposes. Significantly, there is no indication that this forward flexed posture to 70 degrees results in difficulty walking due to limited line of vision, restricted opening, limited breathing, gastrointestinal symptoms, or neurologic symptoms, as required to meet the definition of unfavorable ankylosis for VA purposes. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (4) (2012). In the absence of evidence of unfavorable ankylosis, a disability rating in excess of 40 percent based on limitation of motion or ankylosis under the General Rating Formula for Diseases and Injuries of the Spine cannot be assigned for the Veteran's low back disability at any point during the appeals period. With respect to the possibility of assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45 for the Veteran's low back disability, the Board has considered the Veteran's complaints of pain and limitation of motion, particularly during a flare up. However, there is no evidence to support a finding of unfavorable ankylosis during a flare up or due to pain. The Board emphasizes that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, the Board finds that additional compensation need not be assigned for the Veteran's low back disability under 38 C.F.R. §§ 4.40 or 4.45. See also DeLuca, supra. Turning to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that there is no indication in the medical evidence of record that the Veteran has experienced any incapacitating episodes as defined in VA regulations. Although the Veteran reported flare ups of pain to the VA examiners, he denied any incapacitating episodes to each of the examiners except the November 2009 examiner. However, he only reported three weeks of incapacitating episodes over the past 12 months to the November 2009, not the six weeks of incapacitating episodes required for an increased rating of 60 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Further, VA treatment records are negative for any notations of physician- prescribed bed rest to qualify as an incapacitating episode for rating purposes. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012). Thus, an increased rating cannot be assigned under these criteria for any period during the appeals period. The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code. There is no evidence of any bowel impairment, erectile dysfunction, or other neurologic abnormalities to warrant separate evaluations, other than the radiculopathies for which the Veteran has received separate evaluations. The Board notes that the Veteran complained of bladder impairment without need for a pad to the June 2011 VA examiner. However, the Board finds that the medical evidence does not support a finding that any bladder dysfunction is related to his low back disability. Significantly, the Veteran reported that he was prescribed Tamsulosin for this condition. See VA examination report, June 2011. However, his VA treatment records indicate that his Tamsulosin was prescribed for benign hypertrophy of the prostate, not a bladder impairment related to his low back disability. See VA treatment record, June 2011. Also of significance is the Veteran's failure to report this alleged symptom at any of his four other VA examinations for his low back disability, including the February 2011 VA examination just months before the June 2011 VA examination. Accordingly, the Board finds that the evidence does not support a finding that the Veteran's complaints of urinary frequency are attributable to his service-connected low back disability and a separate evaluation may not be assigned. With regard to the Veteran's separately compensated radiculopathy of the left and right lower extremities, a separate 10 percent rating has been assigned for the left lower extremity from January 12, 2006 to May 7, 2013, a separate 40 percent evaluation has been assigned for the left lower extremity from May 8, 2013 to the present, and a separate 20 percent evaluation has been assigned for the right lower extremity from May 18, 2013 to the present, all under Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent evaluation is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Finally, an 80 percent evaluation is assigned for complete paralysis of the sciatic nerve with the foot dangling and dropping, no active movement of muscles below the knee possible, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). With regard to the left lower extremity, the Board finds that the medical and lay evidence does not support ratings in excess of the 10 and 40 percent evaluations already assigned. Prior to the May 8, 2013 VA examination, there is no evidence of left lower extremity radiculopathy that is more than mild to warrant an evaluation in excess of 10 percent. Although the Veteran has complained of radiating pain and numbness in the left lower extremity throughout the appeals period, there is simply objective medical evidence to indicate that it was more than mild. From May 8, 2013 to the present, there is no evidence of left lower radiculopathy that is more than moderately severe to warrant an evaluation in excess of 40 percent. Although the Veteran had severe numbness, paresthesias, and pain, there was no evidence of marked muscular atrophy to warrant a higher rating of 60 percent. With regard to the right lower extremity, the Board first notes that the RO appears to have made a typographical error in assigning the effective date of May 18, 2013, rather than May 8, 2013. As such, the Board finds that the Veteran's 20 percent evaluation is warranted as of May 8, 2013, the date of the VA examination. From May 8, 2013 to the present, there is no evidence of right lower radiculopathy that is more than moderately severe to warrant an evaluation in excess of 20 percent. Although the Veteran had moderate numbness, paresthesias, and pain, there was no evidence of moderately severe or severe symptoms such as marked muscular atrophy to warrant a higher rating of 40 or 60 percent. Prior to the currently assigned May 8, 2013 effective date, there is no evidence of any right left lower extremity radiculopathy rising to a compensable level. Notably, at his February 2011 VA examination, neurological testing of the Veteran's right lower extremity was normal. Although sensory function for the sciatic nerve was decreased bilaterally at the time of the June 2011 VA examination, there is no indication that any such right lower extremity radiculopathy was more than slight. Without evidence of at least mild incomplete paralysis of the sciatic nerve, a compensable evaluation cannot be assigned for the right lower extremity prior to May 8, 2013. Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 10, 20, and 40 percent disability ratings throughout the appeal period. As such, assignment of additional staged ratings is not warranted. See Hart, supra. For all of the foregoing reasons, the Board finds that an evaluation in excess of 40 percent for the Veteran's low back disability is not warranted at any time during the appeals period, evaluations in excess of 10 percent prior to May 8, 2013 and in excess of 40 percent from May 8, 2013 to the present for his left lower extremity radiculopathy are not warranted, and an evaluation of 20 percent (but not higher) from May 8, 2013 to the present for right lower extremity radiculopathy is warranted. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to evaluations in excess of these for his low back disability with associated radiculopathies, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In this case, however, as the Veteran is already receiving TDIU since May 8, 2013, so analysis of extraschedular consideration from this date forward is unnecessary. For the period prior to May 8, 2013, the Board is remanding the Veteran's claim for TDIU on the basis of extraschedular consideration under 38 C.F.R. § 4.16(b). As this Remand may shed light on the necessity of referral for consideration of extraschedular evaluations for the Veteran's low back disability and associated left lower extremity neuropathy prior to May 8, 2013, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that issues are considered inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another issue). The appropriate remedy where there is an issue on appeal inextricably intertwined with a pending issue is to defer adjudication of the appellate issue until the issue pending has been adjudicated. Id. Thus, adjudication regarding referral for consideration of an extraschedular evaluation prior to May 8, 2013 is deferred until completion of the action directed on remand. ORDER Entitlement to a disability rating in excess of 40 percent for a low back disability is denied. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy prior to May 8, 2013 is denied. Entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy from May 8, 2013 to the present is denied. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is denied, subject to the laws and regulations governing the award of monetary benefits. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to TDIU prior to May 8, 2013, to include as on an extraschedular basis. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of determining a single disability results in a 60 percent rating, disabilities resulting from a common etiology, a single accident, or from multiple injuries incurred in action, may be combined. 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disability, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Prior to May 8, 2013, the Veteran was service connected for a low back disability, evaluated as 40 percent disabling, and left lower extremity neuropathy, evaluated as 10 percent disabling. His combined rating was 50 percent according to the Combined Ratings Table with consideration of the bilateral factor. 38 C.F.R. §§ 4.25, Table I; 4.26 (2012). Even when counting his low back disability and associated left lower extremity neuropathy as a single disability with a common etiology under 38 C.F.R. § 4.16(a)(2), the Veteran does not have a single service-connected disability ratable at 60 percent or more, and his total disability rating is less than 70 percent. Nonetheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). See also Bowling, 15 Vet. App. at 6. As referenced above, the November 2009 VA examiner concluded that the Veteran's low back disability had significant effects on his employment and the February 2011 VA examiner concluded it was highly improbable that the Veteran could maintain employment with his low back disability. Moreover, the SSA determined that the Veteran was unemployable due to orthopedic disabilities as of September 9, 2010. Despite this evidence, the AMC did not refer the Veteran's claim for TDIU prior to May 8, 2013 on an extraschedular basis to the appropriate VA officials for consideration. The Board finds that such evidence warrants referral of the claim to the Director of the VA Compensation and Pension Service for consideration is warranted. The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. 38 C.F.R. § 4.16(b) (2012). Accordingly, the case is REMANDED for the following actions: 1. Refer the claim for TDIU prior to May 8, 2013 under 38 C.F.R. § 4.16(b) to the appropriate department officials for a written decision that explains the reasons and bases for the conclusion reached. 2. After completing the above action and any other development that may be indicated by any response received as a consequence of the action taken in the paragraph above, the claim of entitlement to TDIU prior to May 8, 2013, including on an extraschedular basis, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). [Continued on Next Page] This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs