Citation Nr: 1330824 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-16 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar spine degenerative disc disease and strain from September 12, 2005 through March 8, 2007. 2. Entitlement to an initial disability rating in excess of 20 percent for thoracolumbar spine degenerative disc disease and strain from March 9, 2007 through November 19, 2008, and from February 1, 2009. 3. Entitlement to an initial disability rating in excess of 30 percent for involuntary bowel movements. 4. Entitlement to an initial disability rating in excess of 10 percent for L5 dermatomal left leg pain and numbness. 5. Entitlement to a separate rating for erectile dysfunction associated with thoracolumbar spine degenerative disc disease and strain, to include entitlement to special monthly compensation (SMC) for loss of use of creative organ. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active military service from July 1999 to September 2005. This matter comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted the Veteran service connection for thoracolumbar spine degenerative disc disease and strain, with a 10 percent rating effective September 12, 2005. The RO in Buffalo, New York, currently retains jurisdiction of the Veteran's claim file. In March 2011, the Board remanded this case for additional development. The Appeals Management Center (AMC), in a March 2012 rating decision, increased the Veteran's disability rating for his lumbar spine disability to 20 percent, effective March 9, 2007, granted him a temporary 100 percent disability rating based on surgical or other treatment necessitating convalescence effective November 20, 2008, and returned the 20 percent disability rating as of February 1, 2009. In addition, the AMC granted entitlement to service connection for involuntary bowel movements at a 30 percent disability rating, effective April 21, 2011, and for L5 dermatomal left leg pain and numbness at a 10 percent disability rating, effective October 15, 2008. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issues therefore remain in appellate status. Moreover, as all of these matters derive from the initial appeal concerning entitlement to an initial higher rating for low back disability, all of these issues are considered in appellate status. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. For the period beginning September 12, 2005 through March 8, 2007, the Veteran's thoracolumbar spine degenerative disc disease was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes. 2. For the period beginning March 9, 2007 through November 19, 2008, and from February 1, 2009, the Veteran's thoracolumbar spine degenerative disc disease and strain has not been manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 3. Involuntary bowel movements have not been manifested by extensive leakage with fairly frequent involuntary bowel movements. 4. L5 dermatomal left leg pain and numbness has not been manifested by moderate incomplete paralysis of the sciatic nerve. 5. Erectile dysfunction has been additionally attributed to this service-connected disability, but is not manifested by any physical deformity. 6. The Veteran's service-connected thoracolumbar spine degenerative disc disease has not caused any neurological abnormality of the right lower extremity. 7. The Veteran's service-connected thoracolumbar spine degenerative disc disease has not caused any urinary disorder. CONCLUSIONS OF LAW 1. For the period from September 12, 2005 through March 8, 2007, the criteria for a disability rating in excess of 10 percent for thoracolumbar spine degenerative disc disease and strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5243 (2013). 2. For the period from March 9, 2007 through November 19, 2008, and from February 1, 2009, the criteria for a disability rating in excess of 20 percent for thoracolumbar spine degenerative disc disease and strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5243 (2013). 3. The criteria for a disability rating in excess of 30 percent for involuntary bowel movements have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7332 (2013). 4. The criteria for a disability rating in excess of 10 percent for L5 dermatomal left leg pain and numbness have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8620 (2013). 5. The criteria are met for a separate noncompensable rating for erectile dysfunction associated with thoracolumbar spine degenerative disc disease and SMC for loss of use of a creative organ. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 3.350, 4.1, 4.2, 4.31, 4.115b, Diagnostic Code 7522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service medical records and VA examinations. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in March 2011 in order to obtain treatment VA medical records showing treatment since August 2008, and to provide the Veteran with a VA examination to determine the current nature and severity of his service-connected thoracolumbar spine degenerative disc disease and strain. The VA medical records reflecting treatment since August 2008 were obtained and associated with the claims file. In addition, the Veteran was provided with a VA examination in April 2011. The Board finds that this VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased rating - laws and regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be 'staged.' Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evaluation of initial disability rating for thoracolumbar spine degenerative disc disease The Veteran is service-connected for thoracolumbar spine degenerative disc disease and strain under Diagnostic Code 5243, pertaining to intervertebral disc syndrome (IVDS), which is rated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries 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 the residuals of injury or disease, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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 evaluation is warranted for disability of the thoracolumbar spine when there is 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 evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2013). The following notes accompany the General Rating Formula: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Under the Formula for Rating Intervertebral Disc syndrome based on incapacitating episodes, intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note one states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. VA regulations instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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 the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also 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. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). Evaluation of initial 10 percent rating from September 12, 2005 through March 8, 2007 The Veteran was assigned a 10 percent disability rating as of the day after his release from active duty, based on a VA examination provided in June 2005. At the time of this examination, the Veteran reported that he had pain in his lower back that occurred three times per day and lasted for three hours. The examiner noted that there was no functional impairment resulting from the lumbar spine disability. The Veteran indicated that it did not cause incapacitation. There was no muscle spasm or tenderness, and straight leg raising was negative on both sides. There was no ankylosis. Forward flexion was to 90, with pain beginning at 20 degrees. Extension was to 20, with pain beginning at 20 degrees. Right and left lateral flexion and right and left rotation were all to 20 degrees, with pain beginning at the end of the range. Function of the spine was additionally limited by pain following repetitive use, but there was no additional functional limitations due to fatigue, weakness, lack of endurance and incoordination. There were no signs of IVDS. Neurological examination of the lower extremities was within normal limits. The Board finds that, for the period from September 12, 2005 through March 8, 2007, the Veteran's service-connected lumbar spine disability does not warrant a higher disability rating. Upon examination, the Veteran's lumbar spine flexion was not limited to greater than 30 degrees, but not greater than 60 degrees. The combined range of motion of the Veteran's lumbar spine was 290, greater than the 120 degrees required for a higher rating under the criteria in the General Rating Formula for Diseases and Injuries of the Spine. With regard to the Deluca provisions, while pain was noted upon movement, this pain did not limit the range of motion of his lumbar spine. Mitchell. In addition, there were no additional functional limitations due to fatigue, weakness, lack of endurance and incoordination. Finally, the June 2005 examiner noted that muscle spasm was absent, and no guarding or abnormal spinal contour was noted. As such, disability rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for the period from September 12, 2005 through March 8, 2007. The June 2005 examiner indicated that IVDS was not present; however, as the Veteran is service-connected under Diagnostic Code 5243, pertaining to IVDS, consideration has been given to whether a rating under the Formula for Rating Intervertebral Disc syndrome based on incapacitating episodes. The Veteran has reported flare-ups of his lumbar spine disability, but there is no evidence that the Veteran has been prescribed bed rest by a physician due to his lumbar spine disability. In addition, the Veteran has reported that his lumbar spine disability was not incapacitating. Therefore, a rating under the criteria for Formula for Rating Intervertebral Disc syndrome based on incapacitating episodes is not warranted. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Evaluation of initial 20 percent rating from March 9, 2007 through November 19, 2008 A March 2007 VA medical record shows that the Veteran had forward flexion to 90 degrees, with increasing low back pain at the end range. At his March 2007 VA examination, the Veteran reported occasional flare-ups, when his back pain was at a 9 out of 10. At these times, it was necessary for him to lie on his back, use heat and take medication. Upon examination, forward flexion was to 90 degrees, with pain beginning at 60 degrees. After repetitive movements, the Veteran reported pain at 47 degrees, but was able to flex to 90 degrees. Based on the evidence of record, the Veteran's service-connected lumbar spine disability does not warrant a higher disability rating for the period from March 9, 2007 through November 19, 2008. Even factoring in the Deluca provisions, the Veteran's lumbar spine flexion was not limited to 30 degrees or less. Moreover, there is no evidence that the Veteran has favorable ankylosis of the entire thoracolumbar spine. As such, a higher disability rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for the period from March 9, 2007 through November 19, 2008. The Veteran reported that he had flare-ups that necessitated his lying on his back, applying heat and taking medications; however, there is no evidence in the record that the Veteran had physician-prescribed bed rest during this period. As such, a rating under the Formula for Rating Intervertebral Disc syndrome based on incapacitating episodes is not warranted. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Evaluation of initial 20 percent rating from February 1, 2009 The Veteran was afforded a VA examination in April 2011. The Veteran complained of low back pain that radiated down his right leg. He had undergone surgery in November 2008 with a diagnosis of lumbar stenosis and instability. He reported a mild reduction in pain symptoms in his lower back and legs, with pain still occurring during flare-ups following the surgery. The Veteran reported flare-ups were severe, lasted one to two days and occurred weekly. The examiner noted that, during flare-ups, the Veteran reported that severe pain limits motion and mobility. The examiner noted that there was no history of urinary problems. The Veteran did report numbness, parestheisias, leg and foot weakness, falls and unsteadiness. The Veteran did not have any incapacitating episodes. Upon examination, there was no ankylosis, and forward flexion was 0 to 50 degrees, with objective evidence of pain on motion. There were no additional limitations after three repetitions of range of motion. The Veteran had no incapacitating episodes. The Board finds that the evidence of record does not support a higher evaluation for the Veteran's lumbar spine disability, as of February 1, 2009. The Veteran's forward flexion was not limited to 30 degrees or less, and there was no evidence of ankylosis. With regard to the Deluca provisions, while pain was noted upon movement, this pain did not limit the range of motion of his lumbar spine. Mitchell. In addition, there were no additional functional limitations following repetitions. The Board has also considered rating the Veteran's disability based upon the criteria found in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the evidence does not reflect that the Veteran has experienced any incapacitating episodes necessitating bed rest prescribed by a physician. Again, the April 2011 VA examination report clearly noted no incapacitating episodes. As such, a higher disability rating for thoracolumbar spine degenerative disc disease and strain for since February 1, 2009, is not warranted. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Associated Neurological Abnormalities As noted above, VA regulations dictate that any associated objective neurologic abnormalities must be separately evaluated, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.25, Note 1. Background A June 2005 VA examination report shows that the Veteran reported that he did not have any radiation of pain to his lower extremities. Straight leg raising was negative on both sides. The examiner found that there were no signs of chronic and permanent nerve root involvement. A June 2006 VA medical record shows that the Veteran had central low back ache with tightness along the left side. Upon examination, strength was 5/5 in both lower extremities. All dermatomes are intact and symmetrical to light touch in both lower extremities. Reflexes were normal. In February 2007, the Veteran reported that he had fallen the previous week and felt his back tighten up. He reported that, since that time, he had trouble ambulating with sciatic symptoms down the right leg. Upon examination, sensation was intact and symmetrical to light touch in both lower extremities, and all lower extremity strength was within normal limits. A March 2007 VA examination report shows that the Veteran reported that his back pain would, at times, travel down the right buttock and down the right leg with reported flare-ups. He denied bowel and bladder complaints. He did not have erectile dysfunction. He additionally reported weakness and numbness in his right lower extremity during flare-ups. While sitting on the examination table, the Veteran did appear to have some decreased sensation in the L5 nerve distribution. Muscles appeared to be without evidence of atrophy, and muscle tone and strength was normal. Deep tendon reflexes were brisk on the left and slightly decreased on the right. The examiner noted that the Veteran was scheduled for an MRI in April 2007. A March 2007 VA medical record shows that the Veteran reported radiation of pain into the left leg and intermittent numbness. He denied any bowel, bladder or erectile dysfunction. Sensory testing revealed mild diminution to pinprick sensation over an approximately L5 distribution on the right lower extremity. The remainder of the lumbar dermatomes were intact to pinprick and light touch. Deep tendon reflexes were symmetrically brisk. Muscle testing was normal; however there was some questionable minimal weakness in long toe extension on the right compared with the left. The examiner noted that there appeared to be some mild right L5 radicular symptoms, and that he was requesting a lumbar MRI. An April 2007 MRI report shows that the Veteran had reported right sided radicular symptoms, and that the MRI was ordered to rule out disc herniation and root impingement. The report revealed that T11-12 and T12-L1 discs had minimal bulging without spinal stenosis. The discs from L1 to L4 were normal in appearance. The L4-L5 disc had mild diffuse disc bulging with no spinal stenosis. The L5-S1 disc had a small central and left posterolateral disc extrusion. There was no visible compression of the adjacent nerve root and there was no spinal stenosis. The impression was small central and left posterolateral disc extrusion at L5-S1 and mild disc bulging at L4-5, T11-12 and T12-L1. An April 2008 VA medical record shows that the Veteran had been seen in March 2007, with what was thought to be largely discogenic low-back pain with some possible right-sided L5 radicular findings. The examiner noted that, based on the results of the April 2007 MRI, there was no clear compression of the nerve roots, and no clear central stenosis. August 2008 VA medical records show that the Veteran reported back pain with radiation to both legs intermittently , more severe on the right. The Veteran denied new weakness or numbness, bowel or bladder complaints. A November 2008 VA medical record shows that sensation was normal in the lower extremities. The Veteran reported severe discogenic back pain that radiated down his left leg in the L5 dermatomal distribution. The examiner noted that MRI of the lumbar spine revealed foraminal stenosis around the L5 nerve root on the left. Further testing confirmed this diagnosis. The examiner opined that there was evidence of discogenic back pain with L5 radiculopathy on the left. A December 2008 VA medical record shows that the Veteran underwent back surgery in November 2008. He reported that, prior to the surgery, he had pain in his lower back with radiation in to both legs, on the right more than the left. The Veteran had numbness and tingling, on the right more than the left. There was no loss of bowel or bladder function. Since the surgery, the Veteran reported less radiating pain to the legs, but increased numbness, which was aggravated by walking and sitting on the toilet. August 2010 VA medical record shows that the Veteran had no numbness, weakness, loss of bowel or bladder control. A March 2011 VA medical record shows that the Veteran reported that he had no urinary problems, and no difficulties or change in sex function. April 2011 VA examination reflected the Veteran's reports that pain and numbness continued with radiation down his right leg. He additionally reported fecal incontinence, which was moderate and did not require the use of pads. He had occasional involuntary bowel movements. The Veteran denied urinary problems but reported erectile dysfunction. Sensory examination on the right was normal. On the left, vibration and pain pinprick was decreased in the great toe, but position sense and light touch were normal. He had no abnormal sensations. Muscle tone of the lower extremities was normal and there was no atrophy. Evaluation of initial 30 percent rating for involuntary bowel movement from April 21, 2011 The Veteran is service-connected at a 30 percent disability rating for involuntary bowel movement, due to his service-connected lumbar spine disability, under Diagnostic Code 7332, effective April 21, 2011, the date of his most recent VA examination. The Board notes that the evidence of record shows that, throughout the appeals period prior to the April 21, 2011 examination, the Veteran denied any bowel problems. Diagnostic Code 7332 provides that impairment of sphincter control is evaluated as follows: occasional involuntary bowel movements, necessitating wearing of pad is rated at a 30 percent disability rating, and extensive leakage with fairly frequent involuntary bowel movements is rated at a 60 percent disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7332. The Board finds that the Veteran's fecal incontinence does not warrant a rating in excess of 30 percent. At his April 2011 examination, the Veteran reported fecal incontinence, which was moderate, with occasional involuntary bowel movements. There is no evidence of fairly frequent involuntary bowel movements of extensive leakage. As such, a higher disability rating is not warranted. Under Diagnostic Code 7332. The Board has considered rating the Veteran's fecal incontinence under other Diagnostic Codes in order to provide him with the most beneficial rating; however, given his symptoms, Diagnostic Code 7332 provides the most appropriate criteria for rating this disability. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Evaluation of initial 10 percent rating for L5 dermatomal left leg pain and numbness from October 15, 2008 The Veteran is service-connected for L5 dermatomal left leg pain and numbness under Diagnostic Code 8620 at a 10 percent disability rating, effective October 15, 2008, the date of a VA discogram that led to a VA consultation in early November 2008. The evidence of record shows that the Veteran complained of symptoms in his left lower extremity in March 2007; however, the clinical medical evidence of record does not reflect a diagnosis of a neurological abnormality of the left lower extremity based on clinical medical evidence until October 2008. See VA neurosurgery consultation, dated November 4, 2008. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2013). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2013). Diagnostic Codes 8520, 8620, and 8720 provide the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Neuritis of the peripheral nerves, 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 rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. VA medical records reflecting the Veteran's November 2008 back surgery show that he reported severe discogenic pain traveling in the L5 dermatomal distribution on the left side. He was found to have foraminal stenosis around the L5 nerve root on the left side. His November 2008 VA discharge summary, following back surgery, reflects that sensation was normal, but that he reported a sensation at times of decreased feeling in the left foot. He was assessed with L5 radiculopathy on the left. In December 2008, following his November 2008 surgery, the Veteran reported that prior to the surgery he had pain that would radiate down his leg and numbness and tingling. At his April 2011 VA examination, the Veteran had decreased vibration and pain and pinprick sensation in the great toe area. Detailed reflex and motor examinations were normal. Based on the evidence of record, the Board finds that the Veteran's service-connected L5 dermatomal left leg pain and numbness does not warrant a higher evaluation under Diagnostic Code 8620. While the Veteran has had numbness and radiating pain down his left lower extremity, a rating higher than 10 percent is not warranted because the Veteran's symptoms have been sensory in nature, with no evidence of muscle atrophy and no evidence of loss of reflexes or sensory disturbances more than mild in degree. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Additional Neurological Abnormalities Throughout the appeals period, the Veteran has denied any urinary problems, and none have been noted on examination or diagnosed. As such, a separate disability rating is not warranted for urinary abnormalities. The Veteran has reported symptoms of pain, weakness and numbness in his right lower extremity. The Board has considered a separate evaluation for neurological abnormalities in this right lower extremity in connection with his service-connected lumbar spine disability; however, the medical evidence of record does not reflect a diagnosis of a neurological abnormality in his right lower extremity. The Veteran was provided with an MRI in April 2007 in order to determine whether he had radiculopathy in his right lower extremity, and the examiner determined that was no clear compression of the nerve roots, and no clear central stenosis. In addition, extensive testing in November 2008 revealed radiculopathy in the left lower extremity-no right lower extremity neurological abnormalities were noted. Finally, at his April 2011 VA examination, there were no sensory abnormalities in his right lower extremity, and motor examination was normal on the right. As such, a separate disability rating for neurological abnormalities of the right lower extremity is not warranted. Until the April 2011 VA examination the Veteran had consistently denied erectile dysfunction. At the April 2011 examiner, the Veteran indicated that he had erectile dysfunction. The VA examiner noted that the Veteran's service-connected back disability caused severe effects on his sex life, in that he had difficulty with erections, and pain with mobility. Therefore, a separate rating for erectile dysfunction is warranted. Diagnostic Code 7522 addresses penis deformity with loss of erectile power, and provides for a single 20 percent rating. Entitlement to special monthly compensation should also be considered. 38 C.F.R. § 4.116b, Diagnostic Code 7522. In this case, there is no evidence of any deformity, and therefore a noncompensable (0 percent) schedular rating is appropriate. 38 C.F.R. § 4.31. However, special monthly compensation for loss of use of a creative organ is warranted under the provisions of 38 C.F.R. § 3.350(a)(1)(ii). Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule 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. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's service-connected thoracolumbar spine degenerative disc disease and strain, specifically pain and limitation of motion, are contemplated by the rating criteria set out in the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc syndrome based on incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, the symptoms associated with his service-connected involuntary bowel movements and L5 dermatomal left leg pain and numbness are adequately reflected in the criteria for Diagnostic Codes 7332 and 8620, respectively. 38 C.F.R. § 4.114, Diagnostic Code 7332, § 4.124a, Diagnostic Code 8620. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU considerations The Court has held that entitlement to 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). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The issue of 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). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. At his March 2007 and April 2011 VA examinations, he reported that he was employed as a corrections officer. Accordingly, the question of entitlement to TDIU has not been raised. ORDER An initial disability rating in excess of 10 percent for thoracolumbar spine degenerative disc disease and strain from September 12, 2005 through March 8, 2007, is denied. An initial disability rating in excess of 20 percent for thoracolumbar spine degenerative disc disease and strain from March 9, 2007 through November 19, 2008, and from February 1, 2009, is denied. An initial disability rating in excess of 30 percent for involuntary bowel movements, is denied. An initial disability rating in excess of 10 percent for L5 dermatomal left leg pain and numbness, is denied. A separate noncompensable rating is granted for associated erectile dysfunction with SMC for loss of use of a creative organ, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ J.N. MOATS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs