Citation Nr: 1331976 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-24 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 prior to February 16, 2011. 2. Entitlement to an increased evaluation in excess of 40 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 on and after February 16, 2011. 3. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity radiculopathy prior to November 14, 2012. 4. Entitlement to an increased evaluation in excess of 20 percent for left lower extremity radiculopathy on and after November 14, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from April 2002 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2006 and June 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In January 2011 and September 2012, the Board remanded the claims for additional development. FINDINGS OF FACT 1. Prior to February 16, 2011, the Veteran's service-connected intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 was manifested by pain, stiffness, and weakness with limited motion. Flexion of the thoracolumbar spine was not limited to 60 degrees or less; combined range of motion of the thoracolumbar spine was not to 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; incapacitating episodes were not shown; and objective neurologic abnormalities other than left lower extremity radiculopathy were not shown. 2. From February 16, 2011, the Veteran's service-connected intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 has been manifested by pain, stiffness, fatigue, weakness and spasm with flexion of the thoracolumbar spine limited to as little as 24 degrees. Ankylosis of the spine, incapacitating episodes having a total duration of at least 6 weeks over a period of 12 months, and objective neurologic abnormalities other than left lower extremity radiculopathy were not shown. 3. Since the award of a separate rating, the Veteran's left lower extremity radiculopathy has been manifested by radiating pain and numbness reflective of moderate incomplete paralysis of the sciatic nerve. Moderately severe or severe incomplete paralysis, or complete paralysis has not been shown. CONCLUSIONS OF LAW 1. Prior to February 16, 2011, the criteria for a rating in excess of 10 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). 2. From February 16, 2011, the criteria for a rating in excess of 40 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). 3. Prior to November 14, 2012, the criteria for a 20 percent rating for left lower extremity radiculopathy were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 4. Since the award of a separate rating, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the veteran 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). The RO's November 2006 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's underlying service connection claim for a low back disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice letters in February 2008 and May 2008 told him that the evidence must show that his service-connected disabilities had gotten worse and provided him with the criteria for assigning disability ratings and effective dates. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence. In any case, the claims arise from decisions granting the underlying benefit sought. Once a claim is substantiated to this degree, 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). Therefore, no further notice is needed for any of the claims on appeal. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA treatment records, including more recent treatment records pursuant to the Board's January 2011 remand. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, pursuant to the Board's September 2012 remand, a November 2012 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the disabilities. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473; see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis A. General Legal Criteria Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The appeal is based on the assignment of disability ratings following the initial awards of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, evidence contemporaneous with the claim and the rating decision that granted service connection is most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Id. at 126. If later evidence indicates that the degrees of disabilities increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods. Id. The RO has created staged ratings for these claims. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2013). Therefore, with respect to each of the claims herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). B. Intervertebral Disc Extrusion In the December 2006 rating decision, the RO granted service connection for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1. A 10 percent disability rating was awarded effective November 2, 2006 under Diagnostic Code 5243 for evaluating intervertebral disc syndrome. In the June 2007 rating decision, after the Veteran disagreed with the initial rating, the RO granted a temporary total (100 percent) rating based on convalescence following surgery. This rating was made effective May 22, 2007 to August 31, 2007 when the 10 percent rating was then continued. During the appeal process, in an April 2012 rating decision, the disability rating for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 was increased to 40 percent effective February 16, 2011. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243, preoperatively or postoperatively intervertebral disc syndrome will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) 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. See 38 C.F.R. § 4.25 (2013). The General Rating Formula provides for a 100 percent evaluation for unfavorable ankylosis of the entire spine; a 50 percent evaluation for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 20 percent evaluation 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; and a 10 percent evaluation 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. 38 C.F.R. § 4.71a, General Rating Formula. For VA compensation 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. 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 thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V. Additionally, Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent rating with evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). Prior to February 16, 2011, the Veteran stated that he experienced low back pain in his November 2006 application for benefits. He underwent a VA compensation examination in December 2006. The claims file was not available for review at that time, but the examiner was able to review the Veteran's VA treatment records and an accurate medical history was noted. After x-rays, magnetic resonance imaging and a physical examination, the examiner provided a diagnosis of lower back pain with radiculopathy related to disc space narrowing compression at L4-L5 and L5-S1. Range of motion testing during the December 2006 examination revealed flexion of the lumbar spine to 80 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 43 degrees bilaterally. The combined range of motion of the thoracolumbar spine was greater than the normal 240 degrees. The Veteran complained of pain, including on flare-ups, but the examiner noted that the Veteran denied the pain worsening with the examination up to the range of motion degrees indicated. There was no additional complaint of pain or stiffness with repetitive motion. The November 2006 VA examination reflects that a rating in excess of 10 percent is not warranted based on limitation of motion of the thoracolumbar spine as flexion of the thoracolumbar spine was not limited to 60 degrees or less. Additionally, the combined range of motion of the thoracolumbar spine was not to 120 degrees or less. This is so even with consideration of the effects of painful motion and other factors as the examiner indicated that other factors did not result in additional functional loss. See 38 C.F.R. §§ 4.40, 4.59 (2013); see also DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The Veteran's painful motion is contemplated by the 10 percent rating. The November 2006 examination also revealed that the Veteran's gait was steady and coordinated. His spine had a normal curvature and there was no muscle spasm. Thus, a rating in excess of 10 percent is not warranted during this time period under the other portion of the General Rating Formula allowing for a higher rating for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The December 2006 VA examiner expressly noted that no physician ordered bed rest or prescribed incapacitation in the past 12 months and the Veteran did not report as much. Thus, a higher rating during this time period is also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As to possible objective neurologic abnormalities, the examiner found that sensory and neurologic examinations were within normal limits. There was no evidence of bowel or bladder insufficiency. The Veteran did report radiating pain down his left leg with numbness. A separate rating is in effect for left lower extremity radiculopathy, the evaluation of which is addressed below. Therefore, no separate rating for an objective neurologic abnormality is warranted during this time period other than for which is already in effect. Subsequent to the December 2006 VA examination, the Veteran received treatment for low back pain through the VA system with epidural injections. The records do not reflect inconsistency with the results of the VA examination and do not form a basis for a rating in excess of 10 percent to May 2007. Extension of the thoracolumbar spine was twice measured as to 20 degrees, but range of motion otherwise remained constant and not to a level greater than 10 percent disabling. The record shows that the Veteran then underwent a discectomy at L5-S1 on May 22, 2007. As noted previously, in a June 2007 rating decision, the RO granted a temporary total rating effective May 22, 2007, for the Veteran's service-connected disability on account of convalescence from the surgery. See 38 C.F.R. § 4.30 (2013). The temporary total rating was assigned through August 31, 2007. Because the Veteran has been awarded the maximum benefit allowable by law during the period of May 22, 2007 through August 31, 2007, the Board will not address the evidence in detail or consider whether the Veteran is entitled to an increased rating during that time period. See 38 C.F.R. § 4.30(a) (the total rating will be followed by an open rating reflecting the appropriate schedular evaluation). In a statement received in August 2007, the Veteran stated that he still had a great deal of weakness and pain in his low back following the surgery. He believed that the rods and screws in his back were resulting in stiffness and loss of flexibility. On August 30, 2007, the Veteran underwent another VA examination in connection with the claim by the same examiner who conducted the December 2006 examination. This examination was conducted near the end of the time period for a temporary total rating, so the evidence is relevant. On this occasion, the claims file was available for review. After a physical examination and x-rays, the examiner provided diagnoses of post lumbar fusion with proper placement of hardware and normal vertebral alignment and lower back pain/lumbago with radiculopathy. Range of motion testing during the August 2007 VA examination revealed that the Veteran had forward flexion of the thoracolumbar spine to 80 degrees, extension to 20 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. The combined range of motion of the thoracolumbar spine was to 220 degrees. The Veteran complained of pain and stiffness, but the examiner noted that there was no limitation of motion or functional impairment on flare-up and that the Veteran denied the pain worsening with the examination up to the range of motion degrees indicated. There was no additional complaint of pain or stiffness with repetitive motion. The August 2007 VA examination also reflects that a rating in excess of 10 percent is not warranted based on limitation of motion of the thoracolumbar spine even though the results were slightly worse than the December 2006 examination. The Veteran's flexion of the thoracolumbar spine was not limited to 60 degrees or less. Additionally, the combined range of motion of the thoracolumbar spine was not to 120 degrees or less. This is so even with consideration of the effects of painful motion, stiffness and other factors as the examiner indicated that other factors did not result in additional functional loss. See 38 C.F.R. §§ 4.40, 4.59; see also DeLuca, 8 Vet. App. at 205-206. The Veteran's painful motion and stiffness are contemplated by the 10 percent rating. The August 2007 examiner also noted that the Veteran's gait was steady and coordinated with good symmetry and rhythm with movements. It was expressly noted that the there was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Therefore, a rating in excess of 10 percent was not warranted during this time period under the portion of the General Rating Formula pertaining to muscle spasm or guarding. As to incapacitating episodes, the August 2007 VA examiner expressly noted that no physician ordered bed rest or prescribed incapacitation in the past 12 months and the Veteran did not report as much. Thus, a higher rating during this time period is also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As to possible objective neurologic abnormalities other than left lower extremity radiculopathy, there were no positive neurological findings to include sensory and motor examinations. Moreover, there was no history of bowel or bladder insufficiency. Accordingly, no separate rating for an objective neurologic abnormality is warranted during this time period other than for which is already in effect. After the August 2007 VA examination, the Veteran continued to receive treatment for low back pain through VA facilities. The records through February 2011 do not reflect inconsistency with the results of the VA examination and do not form a basis for a rating in excess of 10 percent. The Veteran submitted statements in October 2007, February 2008, and May 2008. He indicated that he continued to experience back pain and limited ability after physical activity. Nevertheless, the 10 percent rating during this time period contemplated his symptomatology and his statements along with the VA treatment records do not provide sufficient evidence to warrant a higher rating. The Veteran underwent another VA examination in February 2011. At that time, his disability was shown to worsen as flexion of the thoracolumbar spine was limited to 24 degrees. The Veteran was awarded a 40 percent rating based on the evidence in the February 2011 examination, specifically effective from February 16, 2011-the date of the examination. Prior to the date of the examination, it was not factually ascertainable that the Veteran's disability had worsened to this level with consideration of the medical evidence and his statements. Consequently, for the entire period prior to February 16, 2011 exclusive of the convalescent period, the Board concludes that the criteria for a rating in excess of 10 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 were not met. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Therefore a higher evaluation is not warranted during any portion of this rating stage. From February 16, 2011, a 40 percent rating is in effect for the Veteran's intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1. As noted above, a VA examination was conducted in February 2011. The examiner reviewed the claims file, physically examined the Veteran, and provided a diagnosis of intervertebral disc syndrome. The examination revealed that the Veteran's flexion of the thoracolumbar spine had worsened as it was limited to 24 degrees. This degree of limitation of motion of flexion warrants a 40 percent rating under the General Rating Formula as flexion was limited to 30 degrees or less. See 38 C.F.R. § 4.17a, Diagnostic Code 5243. A rating higher than 40 percent is not warranted under the General Rating Formula based on the February 2011 VA examination because ankylosis of the thoracolumbar spine or the entire spine was not shown. The examiner expressly stated that there was no thoracolumbar or cervical spine ankylosis. Additionally, although the Veteran experienced painful motion, flare-ups on physical activity, fatigue, stiffness, weakness and spasm, the examiner determined that there were no additional limitations after three repetitions of range of motion. Even with consideration of the effects of painful motion and other factors, the examination does not reflect that the Veteran's limitation of motion approximated ankylosis or a level of functional loss greater than what is already contemplated by the assigned 40 percent rating. See 38 C.F.R. §§ 4.40, 4.59; see also DeLuca, 8 Vet. App. at 205-206. In regard to incapacitating episodes, the February 2011 VA examiner noted the Veteran's report that he had not been prescribed bed rest by a physician. Although the Veteran reported to the examiner that he has periods of incapacitation that lasted 10 to 14 days, incapacitating episodes for VA purposes require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In the report, the examiner also refers to 4 weeks of incapacitating episodes during a 12-month period. The Board does not find that these episodes meet the definition of an incapacitating episode for VA purposes as there is still no indication of physician-prescribed bed rest. Even so, 4 weeks of incapacitating episodes during a 12-month period meets the criteria for a 40 percent rating. Therefore, a higher rating during this time period is also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as the evidence does not show incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Similar to the previous VA examinations, the February 2011 VA examination does not show that the Veteran had any associated objective abnormalities other than left lower extremity radiculopathy. Reflex, sensory and motor examinations were normal other than for the left lower extremity. There were also no incontinence problems. Thus, no separate rating for an objective neurologic abnormality is warranted during this time period other than for which is already in effect. Subsequent to the February 2011 VA examination, the Veteran received continued treatment for low back pain through the VA system through December 2011. The low back pain was considered stable. In a February 2011 statement, the Veteran reported experiencing low back pain and that he missed days of work due to his low back problems. This evidence is consistent with the results of the February 2011 VA examination and does not form a basis for a rating in excess of 40 percent for this time period. Pursuant to the Board's September 2012 remand, the Veteran underwent additional VA examination of the spine in November 2012. The examiner reviewed the claims file and provided diagnoses of degenerative arthritis and degenerative disc disease of the lumbar spine after examining the Veteran. Limitation of flexion of the thoracolumbar spine was similar to the previous examination as it was limited to 30 degrees, which is reflective of a 40 percent rating. The examiner did not indicate that the Veteran had ankylosis of the thoracolumbar or cervical spine. Although the Veteran experienced pain throughout the entire range of flexion, he still had flexion of the thoracolumbar spine to 30 degrees after repetitive-use testing. The Veteran reported experiencing flare-ups on physical activity, and painful motion, less movement than normal, and interference with sitting, standing and/or weight-bearing was noted. Even considering the effects of painful motion and other factors, the evidence does not reflect that the Veteran's limitation of motion approximates ankylosis or a level of functional loss greater than what is already contemplated by the assigned 40 percent rating. See 38 C.F.R. §§ 4.40, 4.59; see also DeLuca, 8 Vet. App. at 205-206. Experiencing pain throughout range of motion does not equate to ankylosis. The functional loss resulting from painful motion is the level of disability of concern, which is not shown to approximate ankylosis or a level of disability greater than 40 percent. See Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss). Thus, a higher rating is not warranted under the General Rating Formula based on this examination. As to incapacitating episodes, the November 2012 VA examiner expressly indicated that the Veteran had incapacitating episodes during the past 12 months. Although there is no discussion of whether bed rest was prescribed by a physician, the report is on its face evidence of incapacitating episodes. The examiner further indicated that the total duration of incapacitating episodes was at least 4 weeks but less than 6 weeks. This level of incapacitating episodes warrants a 40 percent rating, which has already been assigned. Consequently, a rating in excess of 40 percent during based on the November 2012 VA examination under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes because the incapacitating episodes did not have a total duration of at least 6 weeks during the past 12 months. Lastly, the November 2012 VA examination does not show that the Veteran has associated objective abnormalities other than left lower extremity radiculopathy. Muscle strength testing, reflex examination and sensory examination were normal. The examiner expressly found that there are no other neurologic abnormalities. Therefore, a separate rating for an objective neurologic abnormality is not warranted based on this VA examination. In sum, the Board finds that the two rating stages are appropriately rated for the Veteran's service-connected intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1. Prior to February 16, 2011, an evaluation in excess of 10 percent is not warranted and, on and after February 16, 2011, an evaluation in excess of 40 percent is not warranted. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against higher ratings, the doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. Left Lower Extremity Radiculopathy In the June 2007 rating decision, the RO granted a separate rating for left lower extremity radiculopathy. A 10 percent disability rating was awarded effective November 2, 2006 under Diagnostic Code 8520 for evaluating paralysis of the sciatic nerve. During the appeal process, in a January 2013 rating decision, the disability rating for left lower extremity radiculopathy was increased to 20 percent effective November 14, 2012. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." Neither the Rating Schedule nor the regulations provide definitions for words such as "mild," "moderate," or "severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). Prior to November 14, 2012, the December 2006 VA examiner noted that the Veteran had a history of a complaint of pain radiating down his left leg with numbness. Sensory and neurological examinations were normal at that time, but the provided diagnosis included radiculopathy. In a statement received in August 2007, the Veteran reported that he experienced pain radiating in his left leg. He received treatment through VA facilities during the time period through 2007, including for low back pain with pain radiating to the left lower extremity. The August 2007 VA examiner noted the Veteran's complaint of sciatic pain down his left leg lasting seconds with movement. The examiner indicated that neurological and sensory examinations were normal with only left knee jerk reflex less than normal. The diagnosis included radiculopathy with episodic sciatic type pain. In May 2008, the Veteran stated that his pain and numbness in this left leg had not improved. Treatment for low back pain with radiating pain in the left lower extremity continued during the time period through 2011. In a February 2011 statement, the Veteran reported continued shooting pain down his left leg with numbness. The February 2011 VA examiner who conducted the examination of the Veteran's spine also conducted a neurological examination in connection with this claim. The Veteran complained of nerve pain radiating from the lumbar spine down the posterior left leg. The pain was dull and constant with periods of shooting pain. The examiner provided a diagnosis of "paralysis" of the sciatic nerve. It was noted that the effect on the Veteran's occupation was the same as his spine disability. The examiner noted that an electromyography (EMG) and nerve conduction study administered in March 2011 was unremarkable for radiculopathy. The November 2012 VA examiner who conducted the examination of the Veteran's spine also conducted a peripheral nerves examination in connection with this claim. The examination was conducted on November 14, 2012-the effective date that was assigned for the 20 percent rating. The examiner provided a diagnosis of radiculopathy since 2006. Symptoms included constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity. The severity of the symptoms was characterized as "moderate" in nature. Muscle strength was normal and there was no atrophy. Sensory examination showed decreased sensation in the left lower leg/ankle and sensation was absent in the left foot/toes. The examiner assessed the Veteran's left sciatic nerve as having incomplete paralysis with "mild" severity. The examiner also assessed the external popliteal nerve and the musculocutaneous nerve as mild incomplete paralysis. In consideration of the evidence of record, the Board finds that, since the award of a separate rating, the Veteran's left lower extremity radiculopathy has been manifested by radiating pain and numbness reflective of moderate incomplete paralysis of the sciatic nerve. The November 2012 VA examination report is the most probative evidence for determining the severity of the Veteran's left lower extremity radiculopathy. The examiner expressly noted that there is "mild" incomplete paralysis, but that the Veteran's symptoms are also "moderate" in nature. When resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptoms more closely approximate a "moderate" rather than a "mild" level of severity. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, the Board concludes that the criteria for a 20 percent rating under Diagnostic Code 8520 are met. Unlike the Veteran's spine disability, the evidence does not show that there are distinct stages of varying disability levels. Although the November 14, 2012 VA examination report is the earliest piece of evidence that expressly addresses the severity of the Veteran's radiculopathy in the terms set forth in the rating criteria, the evidence prior to November 14, 2012 shows similar symptoms and level of disability. Since the award of a separate rating, the evidence shows that the Veteran's left lower extremity radiculopathy has been manifested by the same radiating pain with numbness that was described as "moderate" in the November 2012 examination report. Accordingly, the Board concludes that a 20 percent rating is warranted prior to November 14, 2012, as well. Thus, a 20 percent rating is warranted throughout the entire rating period on appeal and no staged rating should be assigned. See Fenderson, 12 Vet. App. at 126. Although a higher rating is warranted prior to November 14, 2012, an even higher evaluation in excess of 20 percent is not warranted at any point since the award of a separate rating for left lower extremity radiculopathy. The evidence does not show that the Veteran's disability has resulted in "moderately severe" or "severe" incomplete paralysis of the sciatic nerve, or complete paralysis. The VA examination reports, treatment records and the Veteran's statements do not reflect such a disability picture. The November 2012 VA examiner expressly noted that the Veteran's symptoms were no worse than "moderate" in nature. Additionally, the Note at "Diseases of the Peripheral Nerves" states that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. There is no indication in the evidence that the Veteran's radiculopathy is other than sensory in nature. Thus, at most, the moderate degree is appropriate. Consequently, a rating in excess of 20 percent is not warranted for left lower extremity radiculopathy. In reaching these conclusions, the Board applied the benefit-of-the-doubt doctrine in increasing the rating to 20 percent prior to November 14, 2012. As the preponderance of the evidence is against a higher rating, the doctrine is not further applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56 (1990). D. Extraschedular Consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for each disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluations are, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture for each of the disabilities is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 was evaluated as a musculoskeletal disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc syndrome. The criteria are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. The Veteran's spine disability has resulted in pain, stiffness, fatigue, weakness and spasm with limited motion. The motion was less limited prior to February 16, 2011, and spasm was not evident then. These types of symptoms are considered in the rating criteria. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 10 percent disability rating for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 prior to February 16, 2011, and a 40 percent rating thereafter. As to the Veteran's service-connected left lower extremity radiculopathy, the disability was evaluated as a disease of the peripheral nerves pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. The criteria are also found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. The Veteran's peripheral nerve disability has resulted in radiating pain and numbness. These types of symptoms are considered in the rating criteria when assessing incomplete paralysis. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 20 percent disability rating for left lower extremity radiculopathy. Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5243, 4.124a, Diagnostic Code 8520; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). ORDER Prior to February 16, 2011, an evaluation in excess of 10 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 is denied. From February 16, 2011, an evaluation in excess of 40 percent for intervertebral disc extrusion with radiculopathy of L4-L5 and L5-S1 is denied. Prior to November 14, 2012, an evaluation of 20 percent for left lower extremity radiculopathy is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 20 percent for left lower extremity radiculopathy is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs