Citation Nr: 1330071 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-19 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for lumbosacral strain with mild degenerative joint disease with wedge compression (hereinafter "low back disability") prior to March 28, 2006 and in excess of 20 percent thereafter. 2. Entitlement to an initial compensable evaluation for neurological dysfunction of the right lower extremity associated with the service-connected low back disability prior to July 23, 2012, and in excess of 20 percent thereafter. 3. Entitlement to an initial compensable evaluation for neurological dysfunction of the left lower extremity associated with the service-connected low back disability prior to July 23, 2012, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to June 1984 and from May 1985 to May 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which awarded service connection for low back disability and assigned an initial 10 percent rating effective June 1, 2005. In April 2007, a 20 percent rating was assigned effective from March 28, 2006. As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that his claim remains in controversy as less than the maximum benefit available has been awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2013, the RO awarded separate ratings for neurological dysfunction of the bilateral lower extremities. The RO assigned separate 20 percent ratings for the right and left lower extremities effective from July 23, 2012. The award was made under the General Rating Formula for Diseases and Injuries of the Spine, which allows for separate ratings for neurological disorders associated with the lumbosacral spine. 38 C.F.R. § 4.71a. As such, the ratings assigned for neurological dysfunction of the bilateral lower extremities is part and parcel of the claim for increase pertaining to the low back disability. The issues on appeal have been re-characterized as they appear on the cover page of the instant decision. In September 2010, the Veteran presented testimony before the Board. A transcript of the hearing has been associated with the claims folder. In December 2010 and June 2012, the Board remanded the matter for additional development and adjudication. Having been completed, the matter is now ready for appellate disposition. FINDINGS OF FACT 1. Prior to March 28, 2006, the service-connected low back disability was not shown to be productive of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 2. From March 28, 2006, the service-connected low back disability was shown to be productive of forward flexion of the thoracolumbar spine 30 degrees or less. There is no evidence of ankylosis of the entire thoracolumbar spine. 3. Resolving all reasonable doubt, throughout the appellate period, the Veteran's neurological dysfunction of the right lower extremity has been productive of moderate neuritis of the sciatic nerve; there has been no evidence of moderately severe, incomplete paralysis of the sciatic nerve at any time. 4. Resolving all reasonable doubt, throughout the appellate period, the Veteran's neurological dysfunction of the left lower extremity has been productive of moderate neuritis of the sciatic nerve; there has been no evidence of moderately severe, incomplete paralysis of the sciatic nerve at any time. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to March 28, 2006, for the Veteran's low back disability have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5235-5243 (2013). 2. The criteria for a 40 percent evaluation, and no higher, for the Veteran's low back disability have been met since March 28, 2006. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5235-5243 (2013). 3. The criteria for a 20 percent evaluation, and no higher, for neurological dysfunction of the right lower extremity have been met throughout the appellate period. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, Diagnostic Code 8620 (2013). 4. The criteria for a 20 percent evaluation, and no higher, for neurological dysfunction of the left lower extremity have been met throughout the appellate period. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, Diagnostic Code 8620 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in June 2005. This appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection for low back disability. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. As noted in the Introduction, during the pendency of the appeal, the RO awarded separate ratings for neurological dysfunction of the bilateral lower extremities. Separate notice for these claims is not required as the General Rating Formula for Diseases and Injuries of the Spine, allows for the application of separate ratings for neurological disorders associated with the lumbosacral spine. The ratings assigned for neurological dysfunction of the bilateral lower extremities are part and parcel of the claim for increase pertaining to the low back disability. The RO provided notice of the disability ratings assigned for disabilities of the spine in June 2008. VA also has a duty to assist the Veteran in the development of the claims, which is not abrogated by the granting of service connection. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board. In June 2012, the RO sent the Veteran a letter requesting that he complete and return consent forms for each private health care provider that treated him for his low back disability since February 2012. The Veteran did not respond. "The duty to assist is not always a one way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Insofar as the Veteran did not provide the information and/or releases that were necessary in order for VA obtain the Veteran's private treatment records, those records could not be obtained and the Board finds that no additional assistance in this regard is required. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (including Virtual VA and Veterans Benefits Management System (VBMS)). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed.Cir.2006)). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). At the outset, the Board would note that effective on September 26, 2003, revisions were made to the VA rating schedule, which established a General Rating Formula for Diseases and Injuries of the Spine. See 68 Fed. Reg. 166, 51454-51458. (August 27, 2003). The Veteran filed his claim in June 2005. Thus, only the regulations effective on September 26, 2003, apply to this claim. The service-connected low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. Under Diagnostic Code 5242, degenerative arthritis of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, is assigned a 10 percent 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 ventral body fracture with loss of 50 percent or more of the height. A 20 percent rating is for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. Id. While the General Rating Formula For Diseases and Injuries of the Spine does identify criteria that would afford a higher rating of 30 percent for disability involving the cervical spine (a 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine), it does not provide for a 30 percent rating for disability associated with the thoracolumbar spine. Id An increased rating to 40 percent is warranted when a back disability is manifested by the following criteria: unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Historically, service connection was awarded for low back disability in a January 2006 rating decision. An initial 10 percent rating was assigned effective June 1, 2005. In April 2007, a 20 percent rating was assigned effective from March 28, 2006. As this is still less than the maximum benefit available, the appeal is still pending. AB, supra. In March 2013, the RO awarded separate ratings for neurological dysfunction of the bilateral lower extremities. The RO assigned separate 20 percent ratings for the right and left lower extremities effective from July 23, 2012. As noted above, the service-connected low back disability has been assigned a 10 percent rating prior to March 28, 2006 and a 20 percent rating thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5242, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243, delineated above. 38 C.F.R. § 4.71a. There has been radiographic evidence showing narrowing of disc space (narrowing at the posterior L5-S1 disk with minimal retrolisthesis on x-ray imaging). However, there has been no evidence of incapacitating episodes of intervertebral disc syndrome as defined by the statute to warrant a higher rating under Diagnostic Code 5243 at any stage of the appeal, to include upon VA examinations in 2005, 2011, and 2012. Id. Notably, the 2011 and 2012 VA examiners indicated there had been no incapacitating episodes requiring physician required bed rest in the past year. The Veteran specifically denied incapacitating episodes during his September 2010 video conference hearing before the Board. As noted above, the Veteran has separate 20 percent disability ratings for neurological dysfunction of the right and left extremities. The RO made the award effective from July 23, 2012, the date of VA examination. However, affording the Veteran all reasonable doubt, the Board finds that the rating is warranted throughout the appellate period. Notably, the Veteran has consistently complained of radiating low back pain into the hips, thighs, and knees, to include as early as 2006. While a 20 percent rating is warranted throughout the appeal period, at no time was a rating in excess of 20 percent warranted as there has been no evidence of moderately severe neuritis of the sciatic nerve. In fact, an objective neurological disorder has not been confirmed on examination, but the initial award was based on complaints of the Veteran during VA examination in 2012, which has been the same throughout the appeal. Specifically, on VA examination in 2005, the Veteran denied any weakness in the lower extremities. VA outpatient treatment records dated between 2006 and 2011 while containing complaints of radiating low back pain into the lower extremities, were negative for numbness or weakness. The 2011 VA examiner found no evidence of lumbar radiculopathy or any neurological deficits attributable to the low back disability. The 2012 VA examiner also indicated there were insufficient findings on examination to diagnose a left or right lumbosacral radiculopathy in that straight leg raise and slump test were negative for radicular pain or paresthesias going down the leg past the knee in a typical dermatomal distribution, and there were no focal motor abnormalities on exam. The examiner indicated the Veteran had a very limited response to SI joint injections and his Gilette's test was no longer asymmetric suggesting the SI joints were not a primary pain generator at this time. He did have mild reflex asymmetry in the medial hamstrings, and was frequently shifting his trunk sideways toward the left while standing and sitting in a manner which can be common with discogenic pain. Thus, the examiner found it was at least as likely as not that he was experiencing disc mediated pain in the back and thighs, even though he did not meet criteria for radiculopathy given there were minimal neurological findings. There was no weakness or paralysis of any type associated nor were there focal dermatomal sensory abnormalities. Thus, neurological dysfunction of the bilateral lower extremities associated with the service-connected low back disability warrants no more than a 20 percent rating throughout the appeal period. The Veteran repeatedly denied bowel or bladder incontinence. On VA examination in 2011, the Veteran indicated he had a recent episode where he started losing bowel control but he did not lose or control or had ever lost control. Thereafter, the Veteran denied bowel or bladder incontinence on VA examination in 2012. The Board shall now consider the service-connected low back disability under the orthopedic diagnostic codes (under the General Rating Formula for Diseases and Injuries of the Spine). Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the currently assigned 10 percent rating prior to March 28, 2006, is appropriate and 40 percent rating is warranted for the period after March 28, 2006. 38 C.F.R. § 4.7; see Hart, supra. In this regard, the Veteran was afforded a VA examination in November 2005 at which time he complained of low back pain. There was mild tenderness along the paraspinous musculature. There was no tenderness over the sacroiliac joints or the sciatic notches. On range of motion of the lumbar spine he was able to forward flex to 80 degrees, extend to 20 degrees, and right and left lateral flexion to each side to 20 degrees. Right and left lateral rotation was to 30 degrees. There was no additional loss of range of motion on repeated forward flexion. There was also no instability, pain on range of motion, or incoordination. There were no spasms noted. X-rays showed mild anterior wedge compression deformity of the L1 vertebral body. Other vertebral body heights were normal and the disc space heights were normal. Alignment was normal. It was not until March 2006 that x-rays showed scoliosis distorting the lumbar vertebra. Thereafter, spasms were consistently noted in the record whereas prior to March 2006 there were no such objective findings. Prior to March 28, 2006, the low back disability was not shown to be productive of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 38 C.F.R. § 4.71a. The Board has considered the complaints of pain experienced in the Veteran's lumbar spine, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. However, as delineated above, the ranges of motion during active and repetitive motions were the same and without pain. There was no limitation secondary to weakness, fatigability, incoordination, or flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. From March 28, 2006, while there was an increase in symptomatology to warrant the currently such that a 40 percent rating is warranted. On VA examination in January 2011, there was mild decrease in the usual lumbar lordosis with mild scoliosis. There was extreme tenderness to palpation with significant pain behaviors somewhat diffusely throughout the body with possibly more focal tenderness over the bilateral lumbar paraspinals and midline. There was some lumbar paraspinal muscle spasm palpable. This contributed to his guarding and was severe enough to result in the mildly abnormal spinal contour. It was unclear if there was focal tenderness over the sacroiliac joints given the more diffuse reaction to palpation. Physical examination showed tenderness in the vertebra and paravertebral areas. Flexion was to 35 degrees (pain at 20), extension to 15 degrees (pain at 10), right lateral flexion to 15 degrees (pain at 15), left lateral flexion to 10 degrees (pain at 10), right lateral rotation to 15 degrees (pain at 10), and left lateral rotation to 15 degrees (pain at 5). The Veteran was not able to perform repetitive testing due to his pain complaints during the first testing. The examiner indicated that there would not be any additional loss of range of motion if he had performed multiple repetitions because he was already demonstrating fairly severe losses of range, which he thought more than adequately demonstrated his current level of function and condition. The Veteran was afforded another VA examination in July 2012. The Veteran complained of pain in the lower lumbar and SI region. It was dull and achy. Pain was 3 to 9/10. Most days the pain got to at least high 8's /10 after work so he took medicine. He indicated that 9/10 pain usually lasted a couple days, sometimes shorter if he used heating pad and a TENS machine right away. He used his cane whenever he was not working including around the house. He was wearing a back brace (elastic and Velcro with flexible stays). There was a decrease in the usual cervical/lumbar lordosis. There was variable scoliosis which depended on position, but in general the Veteran appeared to be shifting left to try and get away from low back pain. There was muscle spasm palpable in the lower lumbar paraspinals bilaterally. Following motion testing there was muscle spasm and guarding sufficient to result in both abnormal spinal contour and gait. There was tenderness to palpation over bilateral lumbar paraspinals/facet joints, and over the bilateral SI (sacroiliac) joints. Thoracolumbar spine range of motion was measured with the goniometer as follows: flexion to 55 degrees with pain at 35; extension to 15 degrees with pain at 10; left lateral flexion to 15 degrees with pain at 15; right lateral flexion to 25 degrees with pain at 20; left lateral rotation to 10 degrees with pain at 10; and right lateral rotation to 10 degrees with pain at 10. Repetitive testing was delayed until the end of the exam and repeated in a sitting position to allow the Veteran's pain to quiet down. His pain began at 6/10 but increased to 9/10 during the exam and 8-9/10 after the exam. There was no significant change in active range of motion following repeat testing times three against resistance but the Veteran's level of discomfort was obvious and consistent so an additional 10 degrees flexion loss of lumbar range was recommended for the thoracolumbar spine due to painful motion, weakness, and impaired endurance. Magnetic resonance imaging dated in 2010 showed no evidence canal stenosis, slight foraminal compromise L4/L5 and L5/S1. The Veteran was diagnosed with lumbar degenerative disc disease and spondylosis, which the examiner opined was a natural progression of his original diagnosis of lumbosacral strain. The severity was moderate to severe. VA outpatient treatment records dated between 2006 and 2012 contain complaints of low back pain and spasm. There were indications the Veteran had limited range of motion; however, no specific ranges were provided. Based on the evidence delineated above and with consideration of DeLuca, there is evidence of forward flexion of the thoracolumbar spine to 30 degrees or less. At the January 2011 VA examination, the Veteran demonstrated flexion to 35 degrees, but the examiner noted that pain began at 20 degrees. At the July 2012 VA examination, forward flexion was measured to 55 degrees, with pain at 35 degrees. The examiner further commented that on repeat testing times three against resistance the Veteran's level of discomfort was obvious and consistent and the examiner estimated an additional 10 degrees flexion loss due to painful motion, weakness and impaired endurance. Thus, flexion was functionally equivalent to 20 degrees in January 2011 and 25 degrees in July 2012. While the Veteran's spine is not ankylosed, it is clear that his range of motion is limited beyond what was objectively measured on VA examination. Resolving the benefit of the doubt in favor of the Veteran, and in light of functional loss due to pain considerations, the Board concludes a 40 percent rating is warranted for his low back disability, but no higher. A higher schedular rating is only available with medical evidence of ankylosis, which there is no such evidence here. In sum, an evaluation in excess of 10 percent prior to March 28, 2006 is not warranted as the evidence does not show low back disability productive of symptomatology consistent with the requisite incapacitating episodes of intervertebral disc syndrome, or limited motion as delineated to satisfy the next higher rating nor was there any evidence of 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, but no higher, is warranted from March 28, 2006 While the Veteran's neurological dysfunction of the left and right lower extremities warrants a 20 percent rating throughout the appeal period, a rating in excess of 20 percent is not warranted as the evidence does not show symptomatology consistent with moderately severe neuritis of the sciatic nerve associated with the low back disability. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to low back disability and neurological dysfunction of the lower extremities that is not encompassed by the schedular criteria. The reported complaints of pain and decreased motion are fully contemplated by the schedular criteria. Despite missed days from work, the Veteran remains employed full-time. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. As there is also no objective evidence, or allegation, suggesting that the schedular criteria are inadequate, the Board finds that the schedular criteria clearly encompass the symptoms and impairment shown and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The evidence of record shows that despite missed days from work (approximately six days per month as testified to in 2010), the Veteran continued to work full time during the appeal. He has not made any assertions of unemployability during the appeal period. Hence, further consideration of TDIU is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for low back disability prior to March 28, 2006, is denied. Entitlement to a 40 percent rating for low back disability after March 28, 2006, is granted subject to the controlling regulations governing monetary awards. Entitlement to a 20 percent evaluation, and no higher, throughout the appeal period, for the neurological dysfunction of the right lower extremity associated with the service-connected low back disability is granted subject to the controlling regulations governing monetary awards. Entitlement to a 20 percent evaluation, and no higher, throughout the appeal period, for the neurological dysfunction of the left lower extremity associated with the service-connected low back disability is granted subject to the controlling regulations governing monetary awards. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs