Citation Nr: 1329911 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-38 279 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy. 2. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy. 3. Entitlement to service connection for a duodenal ulcer, as secondary to a service-connected back disability. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to a service-connected back disability. 5. Entitlement to total disability based upon individual unemployability (TDIU). REPRESENTATION Appellant (the Veteran) is represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from 1969 to April 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the RO in Salt Lake City, Utah. In a decision dated February 2012, the Board granted separate 20 percent disability ratings for right and left lower extremity radiculopathy associated with the Veteran's service-connected back disability. The Veteran appealed that decision, with respect to the ratings assigned, to the United States Court of Appeals for Veterans Claims (Veterans Court). In an Order dated in October 2012, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's February 2012 decision in part, and remanded the issues of entitlement to disability ratings in excess of 20 percent for right and left lower extremity radiculopathy back to the Board for development consistent with the Joint Motion. The Board's denial of a disability rating in excess of 60 percent for a back disability was not contested by the parties and was not disturbed by the Veterans Court's Order. The issues of entitlement to service connection for a duodenal ulcer, entitlement to service connection for GERD, and entitlement to TDIU were remanded by the Board in February 2012. As there was no appealable decision by the Board on these issues, they were not subject to the jurisdiction of the Veterans Court. They have been returned to the Board by the RO following the February 2012 remand. However, as will be discussed below, the Board's remand instructions have not been accomplished. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for a duodenal ulcer, entitlement to service connection for GERD, and entitlement to TDIU are addressed in the REMAND below and are therein REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue decided herein has been accomplished. 2. For the entire period of this appeal, the Veteran's bilateral lower extremity radiculopathy has been manifested by incomplete paralysis of the sciatic nerve of each lower extremity that is no worse than moderate. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for right lower extremity radiculopathy have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for a disability rating higher than 20 percent for left lower extremity radiculopathy have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Veterans Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Service connection for a back disability was granted in a September 1971 rating decision. At that time, separate compensable disability ratings were not assigned for lower extremity neurological abnormalities. In the February 2012 decision, the Board granted separate 20 percent ratings for each lower extremity. This decision was implemented by the RO in a June 2013 rating decision. The RO assigned the ratings under Diagnostic Code 8520, effective December 21, 2007. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993). In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis, cranial or peripheral, 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. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The Board notes that the Veteran has not been diagnosed with neuritis or neuralgia. Therefore the specific provisions for those conditions are not appropriate. The diagnosis in this case has consistently been lumbar radiculopathy involving the sciatic nerve. In light of the Veteran's description of pain and diminished or "spongy" sensation in the lower extremities, the Board finds that a rating in accordance with incomplete paralysis is appropriate. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A rating of 80 percent available for complete paralysis of the sciatic nerve such that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. A 60 percent rating is available for severe incomplete paralysis with marked muscular atrophy. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. The Board observes that the words "mild," "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). An April 2006 EMG report reveals electrodiagnostic evidence of chronic and active right and left L5-S1 radiculopathy with ongoing denervation in muscles supplied by L5/S1 nerve roots. A July 2007 VA Primary Care Provider note reveals that patellar deep tendon reflexes were absent and there was decreased light touch on the posterior thigh and lateral lower leg, as well as the top of the foot. Primary Care Physician notes in September 2007, October 2007, January 2008, and May 2008 reveal that posterior tibial and dorsalis pedis pulses were 2+ bilaterally; strength was normal in all extremities; and deep tendon reflexes were normal and equal bilaterally. The report of VA examination in December 2007 reveals the Veteran's report that, if he sits for longer than an hour, he will have radiculopathy into his bilateral legs, right greater than left, especially in the right buttock following an L4-L5 pattern down across the posterior thigh, then laterally across the knee into the lateral crest and on top of his foot on the fourth and fifth digits. This was described as a burning sensation with needles. At that time, he was taking no alleviating medications for this. He reported flares with sitting and/or standing or walking for long periods, which tend to be "30 %" manifested in the back and "Ninety percent" in the legs. It will flare to 9 out of 10. It feels sharp into the hip, and like a poke into the leg with a lot of pressure. He will sometimes get a headache where he will feel nausea and dizziness and will have to wait for his equilibrium on standing. The duration of flares is usually short - minutes to hours. As long as he moves or changes position the leg pain usually will reduce. He can walk 200 feet or a house and a half before he has to stop because of pain. He can walk without a cane, but reported that he does not feel as comfortable without it. Regarding functional impairment, the Veteran reported to the December 2007 examiner that he could mow his lawn with a self-propelled mower, but it would take him several days to complete. He could vacuum, but could not seem to finish it fully. He was able to care for himself; however, his wife would help him with pulling on his socks and his compression stockings. Over the prior year and a half he had not been going fishing because of his pain. He could only walk a few hundred feet without resting due to pain. He was still working at Hill Air Force Base and reported that he had to constantly get up after an hour of sitting to relieve his pain. He was not able to tell the examiner how often he has a day off. It was estimated from their discussion that it might be close to one day every other month. He reported that those days are when he just cannot get out of bed. On examination, he was not in any acute distress. He stood during the entire interview leaning upon his oxygen tank and his cane in the left hand. His posture and gait were abnormal in that he had a bilateral limping motion through his hips and legs. He could walk short distances, such as five to ten feet, without a cane, but his gait was moderately more abnormal. He had normal strength. His sensation was essentially normal, although he reported an ache subjectively through the L4-L5 dermatome and worsening with straight leg raise and slump testing, but without any further sensory loss. He described a sensation of soft sponging under the toes, but retained sensation. Reflexes were 1+ bilaterally. Clonus and Babinski were negative. He did not seem to be able to balance, but he was able to come up on his toes and heels with pain increasing in the right hip. The examiner noted no evidence of motor function involvement, and that the Veteran did not describe much in the way of left radicular type symptoms. A February 2008 nursing note reveals the Veteran's complaint of weak legs causing him to fall, pain radiating down the right leg to the foot, and a tingling feeling. The nurse noted that the Veteran stood during the visit using a single point cane for ambulation. He ambulates well with no gait ataxia. A May 2008 Pain Management addendum notes that a clinical concern of near falls and possible lower extremity weakness would be addressed at a July 14th appointment. Two of the most likely possible explanations for the sensation of the leg "giving out" were thought to be true weakness, perhaps related to a new or increased neurologic problem, or pain inhibition causing the sensation that the leg is about to "give out." A review of the July 14th appointment note contains no pertinent findings regarding weakness. A May 2008 Pain Management note reveals that the Veteran was last seen in February 2008 reporting weakening of the right leg with sharp pain, and that the leg gave out and he caught himself with the kitchen counter. He reported a repeated episode since. He has missed 1-2 evening doses of medication due to falling asleep early in the evening. An October 2008 Social Security Administration (SSA) occupational description reveals that the Veteran repaired aircraft liquid oxygen instruments. He used small jeweler tools, screw drivers, small wrenches, pliers, dikes, and computer test equipment. The instruments were about 2 inches around and 5-9 inches long. The only things he lifted were the instruments, which weighed less than 1 pound. The heaviest weight he lifted was less than 10 pounds. In a September 2008 statement, the Veteran reported that his previous bosses did not like the fact that he took pain medications, depression medications, and needed oxygen. They suggested he take medical retirement. In correspondence in October 2008, the Veteran reported that Hill Air Force Base had medically retired him because of his service-connected problems and the medications he was taking. An October 2008 SSA physical summary by D.O.P. MD reveals that the Veteran's activities of daily life consisted of puttering around, spending a few minutes on the computer, and sometimes playing ball or Frisbee with the dog. He reported that he lacks stamina and it takes longer to dress and he cannot get his legs up. He reported having trouble getting up and down. He was preparing simple meals. It took him more than one day to mow his lawn. It was taking him longer to do chores. He was driving and doing grocery shopping. It was harder to fish and he had not done much fishing that year. He was attending church, but preferred to stay home. He could lift around 20 pounds. Squatting, bending, and kneeling all made it hard for him to get up. It hurt to walk short distances. He was using a cane all the time outside the home. He had chronic pain issues secondary to his back, but physical examinations showed normal strength in the extremities. Activities of daily life were reportedly restricted, including ambulating for long distances and exertional activities. The physician found that the Veteran was not capable of sustaining 6 hours ambulating a day, and thought a seated light residual functional capacity was appropriate. Restriction of activities of daily living was found to be mild; difficulties in maintaining social functioning were found to be mild; difficulties in maintaining concentration, persistence, or pace were also found to be mild. In correspondence received in November 2008, the Veteran reported: The past two years have been very difficult for me physically especially at work. The meds I am on made me so tired some days I was non functioning. This has affected my every day life for the past 39 years with each year getting a little worse. It has affected my activities and lack of activities. It limits my sitting, standing, walking, bending and the recreation time I would love to share with my family. I really haven't got the stamina or physical abilities to hold down the job I worked on for 24 years. That is hard on me emotionally. I was forced out of the job I enjoyed because of my back problems. I actually enjoyed going to work every day and the sense of accomplishment I got out of doing my job well. My desire to do things from the activities that have to be done, to the activities I used to eagerly wait for on the weekends and my vacations (fishing, camping, etc.) is no longer a desire but something I have to force myself to do. Now I force myself to do these things because I want to share time with my family. I don't enjoy doing the fun things any more because my hips, my legs and my back hurt all the time. The pain clinic is wonderful but I don't want to over due the meds either. It has taken away my ability to financially take care of my responsibilities. This has affected my life for the past 39 years. Because I was medically retired because of my service connected problems I should be entitled to more compensation. The medical retirement has become a financial hardship for me and my wife. I'm not the best person to describe what needs to be said but I hope you can get a little bit of how I feel. The report of VA examination in March 2009 reveals that the Veteran's legs start to quiver because of his back pain. His right leg will go out on him at times and he reported that he has fallen 12 to 15 times since September 2008. There are no real spontaneous flare ups, just constant pain. He described a bilateral ache down the back of both legs over the lateral calf and anteriorly to the top of the foot. The right is the same as the left. He reported tingling in his toes, but he is not sure which ones. He gets numbness and tingling over the same distribution. He feels weak from the waist down. If he stands more than 10 or 15 minutes, his legs will get shaky and weak. There are times he cannot function. Once or twice a day, if he does not lie down, he would fall and then lie there on the floor. Regarding activities, the Veteran reported that he can do some housework, such as vacuuming and dishes. He likes to plant in the garden if he can sit down and do that. He can ride a mower. His son helps him in the yard. He can do his self care. He can walk about four houses, then has to stop and rest before he can go again. He has used a cane for 26 years. He says he always has it when he is out, but when he is in the house, he holds on to furniture. There were no limits to self care. He reported that he was medically retired in September 2008 because of "all his medical problems." On examination, the Veteran was in no acute distress, although with movement, he appeared fairly uncomfortable. He walked with a moderate antalgic gait, favoring the left, and used a cane. The cane appeared necessary for balance. Motor strength was rated at 4+ out of 5 in all muscle groups of the lower extremities. He described decreased sensation of the bilateral entire foot and lateral calves; however, there was no absent sensation. Reflexes were diminished but symmetric throughout. Straight leg raising bilaterally gave him pains into his feet. Slump testing was positive bilaterally. The Veteran's attorney submitted an Individual Unemployability Assessment dated in May 2013. While this report finds that the Veteran is unemployable due to the combined effects of his service-connected back and lower extremity disabilities, it provides no findings specific to the lower extremity neurological impairment at issue here. There is no suggestion that the lower extremity impairment alone, without consideration of the back disability, is sufficient to preclude a substantially gainful occupation. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that, while the Veteran's neurological impairment is not wholly sensory, but includes non-sensory changes such as an altered gait and diminished reflexes, the functional impairment resulting from his neurological lower extremity disabilities is productive of no more than moderate impairment. This finding relates to the requirement under 38 C.F.R. § 4.124a that, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. A finding that involvement is not wholly sensory does not imply any higher level of impairment, or indeed any specific level of impairment. It only means that moderate incomplete paralysis is not the maximum level that may be considered. Higher levels are available if the evidence demonstrates an appropriate level of impairment. In finding that the Veteran's incomplete paralysis is not more than moderate, the Board finds it particularly persuasive that, throughout the period on appeal, the findings for strength and muscle tone in the lower extremities have either been normal, or only minimally diminished. This is a significant factor in gauging the degree of incomplete paralysis. As set out above, incomplete paralysis means a degree of lost or impaired function substantially less than the type picture for complete paralysis. The factors for consideration for complete paralysis include loss of muscle function below the knee and muscle weakness at the knee. Thus normal to near-normal findings for strength and muscle tone in the lower extremities are persuasive evidence against a finding of more than moderate incomplete paralysis. The Board acknowledges that a February 2008 nursing note reveals a complaint of weak legs causing the Veteran to fall. A May 2008 Pain Management addendum reveals that the Veteran's concern of near falls and possible lower extremity weakness would be addressed at a July 14th appointment. Two of the most likely possible explanations for the sensation of the leg giving out were true weakness, perhaps related to a new or increased neurologic problem, or pain inhibition causing the sensation that the leg is about to give out. Unfortunately, the July 14th appointment contains no discussion of or findings related to weakness. The Veteran's physical and overall functioning were found to be the same as the May 2008 visit. The report of VA examination in March 2009 reveals that the right leg will go out on him at times and he reported that he has fallen 12 to 15 times since September 2008. There are times he cannot function. Once or twice a day, if he does not lie down, he would fall and then lie there on the floor. The Veteran has numerous service-connected and nonservice-connected disabilities that may contribute to weakness, lack of stamina, instability and falling. In addition to the service-connected back disability, these include chronic hypoxia secondary to hypoventilation, as well as a psychiatric disability. The Board acknowledges that it is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). This is presumed also to extend to differentiating between symptomatology attributed to one service-connected disability versus another. While the Veteran is competent to report his perception of weakness, in this case, there is persuasive evidence against actual muscular weakness in the lower extremities. Primary Care Physician notes in September 2007, October 2007, January 2008, and May 2008, as well as the report of VA examination in December 2007, revealed normal findings for lower extremity strength. Indeed, the December 2007 VA examiner noted no current evidence of motor function involvement. The report of VA examination in March 2009 reveals findings of 4+ out of 5 in all muscle groups of the lower extremities. An October 2008 SSA physical summary by D.O.P. MD finds that restriction of activities of daily living was found to be mild. Thus, to the extent of any strength deficiency attributable to the lower extremity radiculopathy, it has been shown clinically to be minimal. Other non-sensory symptoms are also minimal. Notably, while reflexes in the lower extremities have been diminished, they have remained present. The Board acknowledges that a July 2007 VA Primary Care Provider note, just 5 months prior to the Veteran's increased rating claim, reveals that patellar deep tendon reflexes were absent; however, Primary Care Physician notes in September 2007, October 2007, January 2008, and May 2008 each reveal that deep tendon reflexes were normal and equal bilaterally. The report of VA examination in December 2007 reveals that reflexes were 1+ bilaterally. The report of VA examination in March 2009 reveals that reflexes were diminished but symmetric throughout. Thus, to the extent that reflexes have been impaired, such impairment appears to be minimal. Regarding sensation, while the clinical findings consistently show that sensation is decreased over specific portions of the lower extremities, the March 2009 VA examiner specifically found that there were no areas of absent sensation. The Veteran's principal complaint throughout the appeal has been pain. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. There is no question that the Veteran's incomplete paralysis of the bilateral sciatic nerves has produced a demonstrable impact on function. While the Veteran does not require a cane for ambulation, he does require a cane to ensure stability. The evidence does not conclusively establish what is responsible for this abnormality. However, the Board acknowledges that pain likely contributes to some extent to the Veteran's gait abnormality. However, here again, the Board finds the consistently normal to near-normal findings for lower extremity muscle strength to be significant, as are the minimally diminished reflexes, and the minimally diminished sensation. The Board also notes that the Veteran has consistently been shown to be able to walk, and indeed, in contrast to the Veteran's report in the February 2008 nursing note that he has weak legs causing him to fall, the examiner noted that the Veteran ambulates well. The picture regarding ambulation and functional impairment is obviously mixed; however, the weight of the evidence is against a finding that the Veteran's gait abnormalities and other functional impairment, including due to pain, establish moderately severe, or severe incomplete paralysis. The Board acknowledges that the Veteran is on long-term narcotic treatment for his back pain. Of course, radiculopathy implies a correlation between the pain in the legs and the back. It is impossible to distinguish the effect of the medication attributable to the back disability and the resulting lower extremity disabilities, and there appears to be some overlap in the problems associated with the back and the legs. Nevertheless, the effect of the medications as described by the Veteran is that the narcotics cause drowsiness. He has reported that, when he was employed, his supervisor complained about his taking medications. He reported that drowsiness and falling asleep has caused him to miss taking doses of medications. The Veterans Court has held that, in the context of a claim for TDIU, the effects of medication on employability must be considered. See Mingo v. Derwinski, 2 Vet. App. 51 (1992). While the issue of TDIU is not being decided here, based on the Veteran's descriptions, the Board finds that the effect of the Veteran's narcotic pain medication is the normal and expected effect. The Veteran's increased drowsiness must be balanced against the improvement in symptoms such as pain associated with these medications. The Board presumes by the fact that the Veteran continues to take these medications that they offer some relief of his symptoms. The Veteran has not described such negative impact that, when balanced against the positive impact of pain relief, would alter the Board's finding that lower extremity radiculopathy is productive of no more than moderate incomplete paralysis. The Board must also address a July 2008 Pain Medicine note, which describes back pain with a "significant" neuropathic component. While the word "significant" suggests a measurable or noticeable amount or degree, it does not suggest or imply any specific amount or degree. While the word implies an effect that is noticeable, this fact is acknowledged by the Board and is established in the record by the assignment of 20 percent ratings for each lower extremity, and the corresponding description of moderate incomplete paralysis. There is no doubt that the Veteran's lower extremity radiculopathy and the medication taken to treat it cause impairment. To this end, the Veteran has credibly described the physical limitations caused by his lower extremity radiculopathy, and the effects of his medication. However, some impairment with activities of daily living, including work, is precisely why the Veteran is provided with compensable disability ratings. That is, the Board acknowledges the fact that tasks such as mowing the lawn and vacuuming take the Veteran longer than if he did not have lower extremity radiculopathy. However, the 20 percent ratings he is assigned for each of his lower extremities are intended to help offset the reduced efficiency. If the Veteran had no problems associated with these disabilities, there would be no basis for the current evaluations, let alone higher evaluations. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial rating in excess of 20 percent for radiculopathy of either lower extremity. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). The Board acknowledges that it is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Board has attributed all potentially service-connected symptoms to the Veteran's radiculopathy in considering whether the Veteran is entitled to an extraschedular rating. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected lower extremity neurological impairment. The medical evidence fails to show anything unique or unusual about the Veteran's lower extremity radiculopathy that would render the schedular criteria inadequate. The criteria specifically provide for ratings based on the presence of incomplete paralysis, including pain, numbness, paresthesias, diminished strength, and diminished reflexes. Such factors are explicitly part of the schedular rating criteria. Because the schedular rating criteria are adequate to rate the disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). 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, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his claim for an increased rating for his service-connected back disability in December 2007. By VA regulation, that claim included a claim for ratings for associated neurological abnormalities, such as lower extremity radiculopathy. The Veteran was sent letters in March 2006, June 2006, and October 2008 which advised him of the information and evidence necessary to substantiate his claims. He was also advised as to how disability ratings and effective dates were assigned in the event of a successful claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since notice was sent to the Veteran prior to the initial adjudication of the claim in July 2008, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, records from SSA regarding its disability determination, and the Veteran's written assertions and those of his attorney. In December 2008 correspondence, the Veteran reported that all of his medical care for the back was through the VA hospital. In addition, the Veteran was afforded appropriate VA examinations to address the manifestations and severity of his lower extremity radiculopathy. These examinations are adequate because each was performed by a medical professional based on solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Each report contains findings that address the pertinent rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Moreover, the Veteran has not described any worsening of his radiculopathy since the most recent VA examination. Accordingly, as the Joint Motion relates solely to evidence already of record that was not adequately addressed by the Board, the Board finds that a remand for additional development of the record is not necessary. Finally, the Board acknowledges that the Veteran's attorney submitted additional medical evidence directly to the Board, which has not yet been considered by the RO. As the attorney included a waiver of the Veteran's right to have that evidence considered by the RO, there is no necessity to remand the claim for such RO consideration. ORDER A disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. A disability rating in excess of 20 percent for left lower extremity radiculopathy is denied. REMAND In February 2012, the Board remanded the issues of entitlement to service connection for a duodenal ulcer and GERD to, among other things, provide the Veteran with a VA examination to evaluate those conditions, to provide etiology opinions, and to readjudicate those claims in light of the findings on examination. Most importantly, the Board also remanded the issue of entitlement to TDIU for readjudication in the event of changes to his combined rating resulting from the preceding actions. A review of the physical claims file and Virtual VA system reveals that no action has since been taken on the development requested by the Board in its February 2012 Remand. It is possible that as this case was before the Court the AMC/RO did not have the opportunity to obtain the claims file. In fact, the original February 2012 Board decision/remand is not within the file and appears (this point is not clear) to have been removed from the claims file while the case was at the Court (the Board decision is addressed within the JMR, indicating that they had access to the decision at that time). This could explain the inaction of the AMC/RO. In any event, the Veterans Court has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board apologizes for the delay in the adjudication of the case. Accordingly, the case is REMANDED for the following action: 1. If it has not already done so, provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim of entitlement to TDIU. 2. Schedule the Veteran for a VA examination to determine whether he currently has duodenal ulcer and GERD conditions, and if so, to ascertain the etiology of his current duodenal ulcer and GERD conditions. The claims file and a copy of this Remand must be provided to the examiner in conjunction with the examination. All necessary tests should be conducted and all clinical findings reported in detail. The examiner should first determine whether the Veteran has a duodenal ulcer and/or GERD condition. The examiner is asked to render medical opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's duodenal ulcer and GERD condition, if any, are related to his service or to his service-connected back disability. If there is no direct causation, the examiner is asked to render medical opinions as to whether it is at least as likely as not that the Veteran's duodenal ulcer and GERD condition, if any, were (a) permanently worsened by his service-connected back disability; and, if so, (b) whether such worsening is beyond the natural progress of the respective disease. If the opinion is that his service-connected back disability permanently worsened his duodenal ulcer or GERD beyond their natural progress, the examiner should specify, so far as possible, the degree of disability (pathology/impairment) resulting from such worsening. If the Veteran does not have a diagnosed duodenal ulcer or GERD, the examiner should so state. Beyond the above, the Board asks the examiner to review the record and determine if the Veteran's service connected disabilities, as a whole, at least as likely as not render the Veteran unemployable. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or permanent worsening as it is to find against causation or permanent worsening. A complete rationale is required for all opinions rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to these claims. 3. Readjudicate the issues of entitlement to service connection for duodenal ulcer and GERD, as secondary to service-connected back disability, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this Remand. A careful review of the medical opinion above is requested. If the decision, with respect to the claims, remains adverse to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 4. After completion of any necessary notice, assistance, and other development which may be deemed necessary, the RO should adjudicate the Veteran's claim of entitlement to TDIU. All appropriate administrative and appellate procedures should be followed. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). These claims 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs