Citation Nr: 1329921 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 03-12 934 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for postoperative residuals of a lumbar spine injury. 2. Entitlement to an initial rating in excess of 10 percent for postoperative residuals of a thoracic spine injury. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2004, the Board remanded the Veteran's claims for additional development. In a March 2005 rating decision, the RO granted a total disability rating based on individual unemployability due to service-connected disabilities effective April 23, 2003. In an October 2006 rating decision, the RO granted a 100 percent temporary total rating under the provisions of 38 C.F.R. § 4.30 for postoperative residuals of a lumbar spine injury effective from June 23, 2005, to August 31, 2005; a schedular 20 percent rating was restored effective September 1, 2005. In July 2007, May 2009, September 2010, March 2012, and September 2012, the Board remanded the Veteran's claims for additional development. In a January 2013 rating decision, the Appeals Management Center (AMC) granted service connection for left and right lower extremity radiculopathy secondary to the service-connected lumbar spine disability and awarded a 10 percent rating for each effective April 23, 2012. FINDINGS OF FACT 1. Prior to September 26, 2003, the medical evidence of record shows that the Veteran's postoperative residuals of a lumbar spine injury was manifested by no more than moderately reduced motion of the lumbar spine with pain; limitation of motion of the thoracolumbar spine was to no less than 40 degrees of flexion, no less than 5 degrees of extension, no less than 15 degrees of right and left lateral flexion, and no less than to 20 degrees of right and left rotation during the entire appeal period. 2. The medical evidence of record shows that the Veteran's postoperative residuals of a thoracic spine injury was manifested by no more than moderate to severe reduced motion of the thoracic spine with pain; limitation of motion of the thoracolumbar spine was to no less than 40 degrees of flexion, no less than 5 degrees of extension, no less than 15 degrees of right and left lateral flexion, and no less than to 20 degrees of right and left rotation during the entire appeal period. 3. The Veteran's right lower extremity radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve 4. The Veteran's left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for postoperative residuals of a lumbar spine injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5292 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2012). 2. The criteria for an initial rating in excess of 10 percent for postoperative residuals of a thoracic spine injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5291 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2012). 3. The criteria for a rating in excess of 10 percent disabling for right lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 8520 (2012). 4. The criteria for a rating in excess of 10 percent disabling for left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claims. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2002, March 2004, September 2004, July 2007, January 2008, August 2008, June 2009, February 2010, September 2010, and April 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the January 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). For the purpose of rating disability from arthritis, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45 (2012). During the period pertinent to this appeal, the rating criteria for disabilities of the spine were amended, effective September 26, 2003. Generally, where the rating criteria are amended during the course of the appeal, both the former and the current schedular criteria are considered. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). The RO addressed the Veteran's lumbar and thoracic spine claims under the old criteria in the Schedule in a January 2003 rating decision, an April 2003 statement of the case, and a January 2013 supplemental statement of the case. The RO addressed the Veteran's claims under the current regulations in supplemental statements of the case dated in March 2005, December 2008, June 2010, September 2011, and January 2013. Therefore, there is no prejudice to the Veteran for the Board to proceed with the adjudication of this appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection for postoperative residuals of a lumbar spine injury was granted by a January 2003 rating decision and a 20 percent rating was assigned, effective January 1, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5285-5292. Service connection for postoperative residuals of a thoracic spine injury was granted by a January 2003 rating decision and a 10 percent rating was assigned, effective January 1, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5285-5291. In the selection of diagnostic code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). With regard to the lumbar spine disability, the hyphenated diagnostic code in this case indicates that residuals of fracture of the vertebral spine, under Diagnostic Code 5285, was the service-connected disability, and limitation of motion of the lumbar spine, under Diagnostic Code 5292, was a residual condition. With regard to the thoracic spine disability, the hyphenated diagnostic code in this case indicates that residuals of fracture of the vertebral spine, under Diagnostic Code 5285, was the service-connected disability, and limitation of motion of the dorsal spine, under Diagnostic Code 5291, was a residual condition. Subsequently, the RO and Appeals Management Center (AMC) considered whether increased ratings were warranted under the old criteria (38 C.F.R. § 4.71a, Diagnostic Code 5285-5292 and 5285-5291) or the new criteria used to rate disabilities of the spine effective September 26, 2003 (38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). The Veteran's service treatment reports (STRs) reveal that while the Veteran was serving in Kenya, the Veteran was a passenger in a five ton vehicle which was involved in an accident at which time the vehicle flipped over. The Veteran was pinned under the vehicle and lost consciousness. He sustained injuries to his lungs, ribs, head, left buttock, and spine. He was transferred to Landstuhl Regional Medical Center and then med-evacuated to National Naval Medical Center in Bethesda, Maryland where he was initially treated non-operatively. He was ultimately transferred to Walter Reed Army Medical Center where he underwent a T8 through L2 decompression, fusion, and deformity correction with pedical screw fixation. He later developed an infection which required a procedure to open, irrigate, and drain the wound site. At a VA general medical examination in August 2002, the Veteran reported chronic throbbing pain in his spine which was aggravated by prolonged sitting and standing and increased walking. He also indicated that he had stiffness and limited motion of his spine. He reported that he was unable to play any contact sports as a result of his injury in service. Physical examination of the spine revealed that the Veteran's posture and carriage were erect and his gait was within normal limits. The examiner noted some decreased range of motion of the spine. He noted that the Veteran was unable to touch his fingers to the floor when forward flexing. Specifically, the Veteran was approximately 28 centimeters (cm) from the floor. The examiner noted backward extension to 12. Presumably the finding of backward extension was to 12 degrees; however, the examiner did not specify that fact. The examiner indicated that the Veteran had pain in all ranges of motion. He was capable of left and right lateral flexion to 20 degrees and left and right rotation to 20 degrees. Neurological examination revealed good strength, sensation, and perception in the lower extremities. X-rays of the thoracic and lumbar spine did not reveal evidence of joint space narrowing. The examiner assessed the Veteran with status post severe trauma to the spine with subsequent surgical intervention including Harrington rod placement, and chronic pain. At a VA brain and spinal cord examination in September 2002, sensory examination was intact with increased muscle tone in the right leg. Muscle strength was 5/5 in all four limbs. The Veteran's gait was steady with no evidence of myelopathy. The examiner assessed the Veteran with thoracic spine fracture with neurosurgical fixation, chronic pain with no evidence of myelopathy. At an August 2004 VA general medical examination, the Veteran reported that pain medication did not give him relief so he did not use them regularly. He indicated that he occasionally wore an over-the-counter back brace when doing prolonged standing or walking and a heating pad two to three times per week with good temporary relief to the low back. He denied bowel or bladder problems related to the spine injury. Physical examination revealed that the Veteran ambulated slowly and cautiously without difficulty. He was able to undress and redress without difficulty. Examination of the spine revealed abnormal curvature with increased thoracic kyphosis and mild right thoracic scoliosis and loss of lumbar lordosis. Range of motion testing revealed flexion to 90 degrees, extension to 5 degrees, right and left lateral bending to 15 degrees, and right and left rotation to 20 degrees. There was no report of pain, weakness, or muscle fatigue on range of motion testing. X-rays of the thoracic spine revealed slight rightward mid lower thoracic scoliosis and accentuation of the thoracolumbar kyphosis. Harrington rods were placed from T4 to T11 and T12 to L3 and were noted to be well-placed without radiographic change to suggest complication. The examiner assessed the Veteran with chronic back pain with multiple vertebral fractures and Harrington rod placement. Associated with the claims file is a Disability Determination and Transmittal from the Social Security Administration (SSA) dated in December 2006. The record notes a primary diagnosis of disorders of the back, discogenic and degenerative. The record does not indicate whether the Veteran is in receipt of SSA disability benefits. However, voluminous medical records were submitted by the SSA and include copies of the relevant STRs, VA treatment records, treatment records from the 88th Medical Group, an examination from A. Vitols, D.O., dated in September 2002, and an examination from Tri-State Occupational Medicine dated in November 2006. The VA treatment reports (including all VA treatment reports of record) are dated from May 2002 to October 2012 and reflect that the Veteran was seen at times for back pain. The Veteran was seen for an initial physical therapy session for back pain in October 2002. At a physical therapy session in November 2003, the Veteran was noted to have decreased thoracic and lumbar curves. In February 2004, the Veteran reported pain in the right lower extremity. He was noted to have been undergoing physical therapy for back pain. Sensory examination revealed 5/5 motor strength, sensory examination was intact to touch and pain, and the Veteran's gait was normal. The examiner assessed the Veteran with chronic back pain with new right leg pain and no radicular symptoms or signs. The Veteran attended physical therapy until December 2004 at which time physical therapy was discontinued. The Veteran was recertified for physical therapy for his spine disabilities in early 2008. He was treated on nine occasions with moist heat and therapeutic exercises. He was discharged from physical therapy in March 2008. The treatment reports reflect reports of lumbar spine pain during the relevant time period at issue. The treatment reports from the 88th Medical Group dated from September 2007 to January 2008 reveal that the Veteran underwent x-rays of the lumbosacral spine, a computed tomography (CT) scan of his spine, and a magnetic resonance imaging (MRI) of his spine in September 2007. The CT of the thoracic spine revealed extensive fusion hardware with fairly complete osseous fusion spanning the majority of the hardware fusion with the exception of a compression fracture at T-11. The MRI of the lumbar and thoracic spine revealed multi-level fixation with apparent wedge fracture at T-11. The x-rays revealed diffuse osteopenia, posterior fixation bilaterally from T-5 through L3 was unchaged without evidence of hardware complication and no change of old T-11 wedge compression fracture. He was seen for reports of pain along the right side of the mid thoracic spine and low back in January 2008. The examiner noted that there was some palpable tender hardware in the mid portion of the Veteran's surgical scar of the spine. Neurological examination revealed normal sensation, no weakness of the lower extremities, normal balance, gait and stance, and normal reflexes of the bilateral lower extremities. The examiner assessed the Veteran with midback pain without radiculopathy. Review of the MRI and CT scans showed solid extensive fusion and no malpositioned hardware that could cause pain. The examination report from Dr. Vitols reveals that the Veteran reported severe pain on his right side and intermittent low back pain. Physical examination revealed that the Veteran ambulated with a normal gait and used no assistive devices. The midline incision running the length of the dorsolumbar spine was somewhat tender to palpation. There was some moderate myospasm within the dorsolumbar spine. Range of motion testing of the dorsolumbar spine revealed flexion to 75 degrees, extension to 20 degrees, and right and left lateral flexion to 25 degrees. Dr. Vitols diagnosed the Veteran with status post internal fixation of the thoracolumbar spine with chronic pain and restricted motion. Additional treatment records from the National Naval Medical Center reflect that the Veteran underwent a bilateral lateral extracavity thoracic kyphosis revision for failed spine hardware in June 2005. The examination report from Tri-State Occupational Medicine reveal that examination of the spine revealed a well healed surgical scar on the spine with no obvious scoliosis. The Veteran was noted to have some limited flexion although no specific amount of limitation was included on the report. At a VA spine examination in September 2008, the Veteran reported back pain and indicated that he used over-the-counter lumbar spine support but no crutches, cane, shoe inserts or prosthesis. He reported pain when ambulating, sitting for more than one hour, and standing for more than one hour. He was able to perform activities of daily living and drive. He was unable to participate in any physical activities such as running or playing football and basketball. Physical examination of the spine revealed no weakness, swelling, instability, locking, fatigability, warmth or redness. The Veteran was noted to have undergone a revision with long thoracolumbar instrumentation from T5 to L3 with pedicle screw/rod instrumentation following service in May 2005. He reported that that he was doing well post-operatively until he was involved in an altercation and reinjured his back. Since that time he had aching pain the thoracic spine with pain in the entire spine at times. He also reported tingling in his right hip, buttock, and lower extremity. He denied bowel or bladder involvement. Physical examination of the spine revealed symmetric lower extremities. The Veteran ambulated with a brisk gait and had a relatively straight spine. There was no obvious scoliosis on clinical examination. Kyphosis and lordosis were noted to be reduced. On palpation, the Veteran had tenderness at T7-9 with mild prominence of hardware at those levels. He had mild spasm and guarding of the paraspinal muscles at T7-9. Range of motion testing of the thoracolumbar spine revealed flexion from 0 to 90 degrees with pain, extension from 0 to 30 degrees with pain, right lateral bending from 0 to 20 degrees with pain at 20 to 30 degrees, left lateral bending from 0 to 30 degrees with pain, rotation from 0 to 20 degrees with pain from 20 to 30 degrees. Sensory examination was intact and equal to lumbar dermatomes L2-5. The Veteran reported some diminished sensation in the S1 dermatome on the left but strength was 5/5 bilaterally in the lower extremities. X-rays of the spine revealed placement of Harrington rods in the thoracic spine down to L3 with mild anterior wedging noted at T11. The vertebral bodies and disk spaces were maintained in good position and alignment. There was no evidence of compression fracture or misalignment and no evidence of spondylosis or spondylolisthesis. The lumbosacral joints were normal. There was narrowing of the anterior vertebral disc spaces of the lower thoracic spine and marginal spurring anteriorly and mild dextroscoliosis of the thoracic spine with apex of curve at 7 and slight compression of the lower and upper articular surface of T9. The examiner diagnosed the Veteran with status post multiple fractures of the thoracic spine and multiple stabilization procedures due to infection, failure of instrumentation, and failure of fusion. He was noted to be fused from the level of the mid-thoracic spine to L3 with complete ankylosis of those levels which was the goal of the surgical procedures. The examiner indicated that the Veteran had a moderate level of disability due to his fusion of the thoracolumbar spine. The examiner noted that the Veteran was unable to work due to multiple conditions including a brain condition and his thoracolumbar spine condition. The examiner stated that there was no objective weakness, excessive fatigability, or incoordination associated with the low back condition. The examiner noted that the Veteran did have significant functional loss due to his low back condition with repeated flare-ups and significant symptomatology for which he was dependent on narcotic pain medications for daily relief and to function. The examiner also reported that the Veteran reported increased pain on repetitive flexion and extension of the lumbar and thoracic spine. There was no evidence of incoordination, fatigue, lack of endurance, or weakness of the lower extremities on repetitive testing. At an April 2012 VA spine examination, the Veteran was noted to have residuals of a thoracolumbar compression fracture surgery with mild L2 bilateral radiculopathy. The Veteran endorsed flare-ups that impact the function of his thoracolumbar spine with daily prolonged walking. Range of motion testing revealed flexion to 40 degrees with pain, extension to 10 degrees with pain, right and left lateral flexion to 20 degrees with pain, and right and left lateral rotation to 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions and there was no additional limitation in range of motion of the spine following repetitive-use testing. The examiner noted pain on movement after repetitive use. The examiner indicated that there was localized tenderness or pain to palpation at the mid and lower thoracic spine but no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing of the lower extremities was 5/5 bilaterally. Reflex examination of the lower extremities was normal. Sensory examination revealed decreased sensation to light touch in the upper anterior thigh (L2). There was mild radicular pain and mild paresthesias and/or dyesthesias of the right and left lower extremity but not constant pain or numbness. The examiner indicated that there was involvement of the femoral nerve bilaterally which resulted in mild radiculopathy bilaterally. The examiner indicated that there was no evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner noted that the Veteran regularly used a back brace. X-rays of the lumbar spine revealed that there was no evidence of fracture subluxation and the vertebral bodies and disc spaces were well maintained. X-rays of the thoracic spine revealed mild disc disease and osteoarthritis and scoliosis with a convexity to the right. The examiner concluded that the Veteran's thoracolumbar spine disability did not impact the Veteran's ability to work. She noted that the Veteran was not working and last worked in 2002 and then went to school and has not worked since his back surgery in 2005. Criteria in effect prior to September 26, 2003 Under the criteria in effect prior to September 26, 2003, residuals of fracture of the vertebra were rated under 38 C.F.R. § 4.71a, Diagnostic Code 5285. A 100 percent rating was warranted for cord involvement, bedridden, or requiring long leg braces. A 60 percent rating was warranted without cord involvement; abnormal mobility requiring neck brace (jury mast). Otherwise the disability should rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Limitation of motion of the lumbar spine was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5292. A 10 percent rating was warranted for slight limitation of motion of the lumbar spine. A 20 percent rating was warranted for moderate limitation of motion of the lumbar spine. A 40 percent rating was warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Limitation of motion of the dorsal spine was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5291. A noncompensable rating was warranted for slight limitation of motion. A 10 percent rating was warranted for moderate or severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2003). With regard to the lumbar spine disability, the medical evidence as reported above does not indicate that the range of motion of the Veteran's lumbar spine was more than moderately limited at any time during the appeal period. The evidence does not reflect severe limitation of motion of the lumbar spine and as such an increased rating is not warranted for the lumbar spine disability at any time during the relevant appeal period. At times the Veteran had full flexion of the lumbar spine with some limitation of extension and bilateral lateral flexion and rotation. Most recently, flexion was limited to 40 degrees, extension was limited to 10 degrees, and bilateral lateral flexion and rotation were 20 degrees. However, these findings are not tantamount to severe limitation of motion, even taking into account any additional functional loss due to pain or any other factors. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted under Diagnostic Code 5292. With regard to the thoracic spine disability, the Veteran's disability is rated as 10 percent disabling which is the maximum rating available under Diagnostic Code 5291. The Board has considered whether an increased rating is warranted for either disability under Diagnostic Code 5285. However, the medical evidence as reported above does not meet the criteria for a 60 percent rating at any time during the pendency of the appeal. Moreover, the rating criteria under this Diagnostic Code provide that the service-connected lumbar and thoracic spine disabilities should be rated in accordance with definite limitation of motion. As the Veteran's disability involves restricted articulation of a joint, the Board must also address the provisions regarding limitation of function due to pain, weakness, incoordination, excess motion, and fatigability. 38 C.F.R. §§ 4.40, 4.45 (2012). DeLuca v. Brown, 8 Vet. App. 202 (1995). However, as there is no indication in the record that the Veteran experienced any limitation of motion of the lumbar spine due to pain, weakness, or incoordination that would have resulted in disability more nearly approximating severe limitation of motion with regard to the lumbar spine, the Board finds that a rating in excess of 20 percent is not warranted for the lumbar spine disability at any time during the pendency of the appeal. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As noted, the Veteran is in receipt of the highest rating available for his thoracic spine disability under Diagnostic Code 5291. Accordingly, the Board finds higher ratings are not warranted for either the service-connected lumbar or thoracic spine disabilities under the old rating criteria at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5292, 5285-5291 (2012). Criteria in effect since September 26, 2003 Under the General Rating Formula for Diseases or Injuries of the Spine (General Rating Formula), effective September 26, 2003, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula (2012). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). For VA purposes, normal forward flexion of the thoracolumbar 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2012). As an initial matter, the Board notes that disabilities of the thoracolumbar spine are rated as a single disability under the revised rating criteria effective September 26, 2003. As such, the Veteran's thoracic and lumbar spine disabilities would be rated as one single disability. However, in order to afford the Veteran the greatest possible benefit, the Board will continue to rate the thoracic spine disability and the lumbar spine disability as two separate disabilities. For purposes of analysis, the Board will continue to rate the thoracic spine disability under the old criteria but will consider whether an increased rating is warranted for the lumbar spine disability under the amended criteria in effect since September 26, 2003. In this case, for the relevant time period at issue, the Veteran's lumbar spine disability has been rated as 20 percent disabling. The medical evidence as reported above reflects that range of motion testing of the lumbosacral spine reveals flexion limited to no less than 40 degrees, extension to no less than 5 degrees, left and right lateral flexion to no less than 15 degrees, and left and right lateral rotation to no less than 20 degrees. While the September 2008 VA examiner indicated that the Veteran's spine was fused from the level of the mid-thoracic spine to L3 with complete ankylosis of those levels which was the goal of the surgical procedures, these findings are not tantamount to favorable ankylosis of the entire thoracolumbar spine which would equate to a 40 percent rating. As the Veteran's disability involves restricted articulation of a joint, the Board must also address the provisions regarding limitation of function due to pain, weakness, incoordination, excess motion, and fatigability. 38 C.F.R. §§ 4.40, 4.45 (2012). DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Veteran has reported back pain, there is no indication in the record that the Veteran experienced any limitation of motion of the lumbar spine due to pain, weakness, or incoordination that would have resulted in disability more nearly approximating 30 degrees or less of flexion or favorable ankylosis of the entire thoracolumbar spine. Joint pain alone, including pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2012). Accordingly, the Board finds that the preponderance of the evidence of record does not show that the Veteran experienced pain which caused additional functional loss beyond that contemplated by the currently assigned rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board finds that a rating in excess of 20 percent is not warranted under the General Rating Formula for the orthopedic manifestations of the Veteran's service-connected lumbar spine disability. 38 C.F.R. § 4.71a, Diagnostic Code 5237-5243 (2012). Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes (2012). An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes (2012). The first evidence of joint space narrowing of the thoracolumbar spine indicative of intervertebral disc syndrome came at the time of the September 2008 VA examination. The Board finds that the preponderance of the evidence of record does not show that the Veteran required bed rest prescribed by a physician at any point and during no 12 month period is he shown to have required bed rest prescribed by a physician for at least one week or more. While the Veteran has indicated that he is sedentary due to his service-connected lumbar spine disability, there is no medical evidence of record that rest was ever prescribed by a physician. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted at any point during the period on appeal due to incapacitating episodes. This issue has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's lumbar spine symptoms, the evidence shows no distinct periods of time during which his symptoms have varied to such an extent that different ratings from those assigned herein are needed to adequately compensate the disability. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.344 (2012); Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the right and left lower extremity radiculopathy, the Veteran's neurologic disabilities have been rated as 10 percent disabling each under Diagnostic Code 8520, which is used to rate paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2012). Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating, and moderately severe incomplete paralysis of the sciatic nerve warrants a 40 percent rating. 38 C.F.R. § 4.124a (2012). In this case, while there are various reports of decreased sensation of the lower extremities at times prior to the most recent VA examination in April 2012, there is no evidence of a diagnosed radiculopathy based on sensory testing until the April 2012 VA examination. At that time, sensory examination revealed decreased sensation to light touch in the upper anterior thigh (L2). There was mild radicular pain and mild paresthesias and/or dyesthesias of the right and left lower extremity but not constant pain or numbness. The examiner indicated that there was involvement of the femoral nerve bilaterally which resulted in mild radiculopathy bilaterally. These findings are tantamount to mild incomplete paralysis of the sciatic nerve. The Board finds that there is no evidence of moderately incomplete paralysis of the sciatic nerve to warrant 20 percent ratings. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for a lumbar spine disability at any time or a rating in excess of 10 percent for a thoracic spine disability at any time. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for right and left lower extremity radiculopathy. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations The Board has considered whether extraschedular ratings are warranted in this case. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2012). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2012). The Board finds that referral is not warranted in this case. While the Veteran was noted to be unemployed throughout the pendency of this appeal, he was noted to have multiple medical conditions which have caused his unemployment. The evidence of record does not show that the Veteran's service-connected lumbar or thoracic spine disabilities would markedly interfere with employment, beyond that contemplated in the assigned rating, or to warrant frequent periods of hospitalization. The Board acknowledges that the Veteran's lumbar and thoracic spine disabilities would certainly affect his ability to perform certain types of employment. However, none of the examiners of record have concluded that these disabilities result in marked interference with employment. Moreover, the service-connected lumbar and thoracic spine disabilities have not required frequent periods of hospitalization. Consequently, the Board finds that the evidence does not show that the criteria for referral are met because marked interference with employment and frequent hospitalizations are not shown. 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial rating in excess of 20 percent for postoperative residuals of a lumbar spine injury is denied. Entitlement to an initial rating in excess of 10 percent for postoperative residuals of a thoracic spine injury is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs