Citation Nr: 1333525 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-13 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for low back strain with degenerative changes, hereafter referred to as low back disability, prior to March 24, 2008. 2. Entitlement to a rating in excess of 20 percent for low back disability from March 24, 2008 to September 21, 2010. 3. Entitlement to a rating in excess of 40 percent for low back disability since September 21, 2010. 4. Entitlement to a separate compensable evaluation for radiculopathy of the right leg. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran had active military service from July 1974 to November 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. During the pendency of the appeal, in an April 2008 rating decision, the RO granted a higher 20 percent rating for low back disability, effective March 24, 2008. In February 2011 the RO granted a higher 40 percent rating effective September 21, 2010. Since these increases did not constitute a full grant of the benefit sought, the Veteran's claim for an increased rating for his low back disability remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran was afforded a November 2009 Travel Board hearing. In February 2010 the Board remanded this claim in order to obtain outstanding treatment records, provide the Veteran notice and the opportunity to submit additional private treatment records, afford the Veteran a contemporaneous VA examination for his low back, and readjudicate the issue, to include consideration of the appropriateness of an extraschedular rating. VA treatment records through 2010 were obtained, an April 2010 notice provided the Veteran the opportunity to submit or authorize requests for additional private treatment records, a September 2010 VA examination for his low back was performed, and the RO readjudicated the claim, to include consideration of an extraschedular rating in February 2011. As such, there has been substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran submitted additional evidence, along with a waiver of initial RO consideration in February 2011, such that the Board will proceed with adjudication. FINDINGS OF FACT 1. Prior to March 24, 2008, the Veteran's lumbar disability was, at its worst, limited to 90 degrees forward flexion with pain; combined range of motion was greater than 120 degrees; and he was without evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. From March 24, 2008, to September 21, 2010, the Veteran's lumbar disability was, at its worst, limited to 50 degrees with pain, and there was no evidence of ankylosis of the entire spine. 3. Since September 21, 2010, the Veteran's lumbar disability was, at its worst limited to 25 degrees of forward flexion, and there was no evidence of unfavorable ankylosis of the entire spine. 4. During the entire period on appeal, there were no physician-prescribed periods of bedrest. 5. The Veteran has complained of radiation into the right leg, especially after walking for some distance, throughout the appeal period. Minimal objective findings have been identified commensurate with no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to March 24, 2008, the criteria for a rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 2. From March 24, 2008, to September 21, 2010, the criteria for a rating in excess of 20 percent for lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 3. Since September 21, 2010, the criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 4. With resolution of reasonable doubt in the appellant's favor, the criteria for a separate rating of 10 percent for right-sided lumbar radiculopathy, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2007 pre-rating correspondence of the information and evidence needed to substantiate and complete his claim, to include information regarding how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations. The September 2010 VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. Although the Veteran's representative was concerned with the examiner's evaluation of the Veteran's radiculopathy, the Board finds the examiner conducted a neurological examination, which substantially complied with the remand directives. Further, the Board observes that it granting a separate rating for radiculopathy. Moreover, during the November 2009 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2). There is no evidence that any VA error in notifying or assisting the Appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 (2013). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, and include consideration of weakened movement, excess fatigability, incoordination, swelling and pain on movement. 38 C.F.R. § 4.45 (2013). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2013). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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, the following ratings are assigned for disability of the thoracolumbar spine: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5343 (2013). 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 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 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 dysphagia; 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2013). In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013) provides 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. Note (2) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever results in a higher evaluation for that segment. The Veteran contends that he is entitled to an increased rating for his back disability, which he indicated includes sclerosis, spondylolisthesis, sciatica, disc herniation, synovial cyst, disc space narrowing, broad bulging annulus defect, bilateral pars interarticularis defect, loss of T2 signal, and radiating pain through leg areas (sciatica). He has described low back symptomatology to include walking sideways, experiencing incapacitating episodes, having his legs give out with numbness or weakness, constant pain, stiffness, spasms, difficulty walking more than 100 yards or standing more than 5 minutes. Statements from his wife, coworkers, and neighbor support his contentions, and give accounts of his difficulty walking (more than 75 to 100 yards) and standing, and evidence pain such that he has to sit, move positions, or make frequent stops. The witness accounts include descriptions of the Veteran shifting and lifting his right leg in an effort to ease pain. He has submitted print outs with definitions for degenerative spondylolisthesis, lumbar stenosis, lumbar disc herniation, and sclerosis. In addition, the Veteran has submitted a copy of his Disabled Person Identification from the New Jersey Motor Vehicle Commission. A December 2005 rating decision granted service connection for low back strain with degenerative changes at L4-5, evaluated as 10 percent disabling since December 1, 2003. In April 2007 the Veteran requested an increased rating. In April 2008 the RO increased the Veteran's rating to 20 percent since March 24, 2008. The rating was subsequently increased to 40 percent from September 21, 2010, date of VA examination. An October 2006 magnetic resonance imaging(MRI) impression was of probable T11-T12 disc herniation. At the L4-L5 level, there was Grade I anterior listhesis secondary to bilateral pars defects. There was bulging of the annulus and marked narrowing of the neural foramina bilaterally. There was mild central stenosis at that level. At the L5-S1, there was bulging of the annulus and facet hypertrophy with a right paracentral annular tear without disc herniation. The neural foramina at that level were narrowed considerably, but there was no central stenosis at that level. Private treatment records from January 2007 show that the Veteran reported low back pain radiating to his right buttock and right leg, especially when standing. The Veteran reported difficulty when he stood for more than five minutes. He indicated that he experienced relief when he leaned forward. He experienced occasional numbness, pins and needles, and tingling in his right leg. His exercise tolerance was approximately 100 to 200 yards. The Veteran reported that he took Celebrex occasionally, but had not undergone steroid injections or physiotherapy for his pain. On examination, he walked with a normal gait and station, and there was no tenderness to palpation in his back. Straight leg raise testing was negative bilaterally. He had normal sensation to light touch in the bilateral lower extremities, but absent patellar tendon and Achilles tendon reflexes bilaterally. MRI from October 2006 was reviewed and showed L4-5 spondylolisthesis with stenosis, disk degeneration at L4-5 and L5-S1, and T11-T12 disc herniation. The Veteran was afforded a June 2007 VA examination for his low back, wherein the claims folder was not available for review. Nevertheless, the examiner's notes as to the Veteran's back condition and reported symptoms contain probative value. The Veteran reported experiencing low back pain rated as a 3 on a scale with 10 as the worst pain, and which was constant and dull in nature. He denied any weakness, stiffness, or fatigability at rest. The Veteran indicated that his pain radiated to the right side, but not to his hips or extremities. He denied any weakness or numbness to his lower extremities. The Veteran had a normal gait and walked without an assistive device. He treated his pain with Celebrex. The Veteran reported experiencing limitation with flare-ups of back pain when standing more than five minutes or walking more than 100 yards. The Veteran reported that in spite of his low back he could perform a desk job, and activities of daily living. On examination, there was no pain or tenderness in the lumbar spine, and posture was erect. There was no loss of lumbar lordosis. Muscle tone was normal, without presence of atrophy in the low back, and there was an absence of paravertebral spasms in the low back. Range of motion testing showed forward flexion to 90 degrees, lateral flexion to 30 degrees on each side, rotation to 35 degrees on each side, and extension to 10 degrees. Following repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran experienced flare-ups of back pain with standing more than five minutes, lifting objects more than 25 pounds, climbing more than a flight of stairs, running more than 25 yards, bicycling more than two minutes, and walking more than 100 yards. The Veteran reported that his pain was a 10 of 10 during flare-ups. Flare-ups reportedly occurred seven times a week, lasting approximately 20 minutes each time. Resting, stretching, taking medication, or using a hot tub were alleviating factors. There was no objective evidence of tenderness or spasm in the lumbar spine, and no weakness in either lower extremity. Neurologic examination revealed no muscle atrophy in the lower extremities, normal muscle tone, and strength that was five of five, equal and symmetrical. There was no sensory deficit to light touch. Deep tendon reflexes were two plus and symmetrical in both lower extremities. The Veteran had not experienced incapacitating episodes that required bed rest, or moist heat and medication use prescribed by a physician in the previous year. X-ray showed degenerative joint disease of the lumbar spine. Diagnosis was of lumbosacral strain, mildly active at the time of examination. Treatment record from December 2007 indicated that there was objective evidence of no antalgic gait, and in standing, the Veteran leaned left. Imaging gave an impression of four lumbar vertebrae instead of the usual five, a slight degree of rotary scoliosis and a more prominent than usual lumbosacral angle, hypertrophic degenerative changes, particularly in the low lumbar region with hypertrophic lipping and suggestion of narrowing of the disc space between the 3rd and 4th lumbar vertebrae. The Veteran reported experiencing radiation to his lower extremities. A provisional diagnosis of lumbago was assessed. The Veteran practiced aqua aerobics, and was additionally referred to a chiropractor. It was indicated that lumbosacral spine motion was abnormal, and pain was elicited with motion. The Veteran was afforded a VA examination in March 2008, wherein the claims folder was reviewed. The Veteran reported that his back pain was progressively worsening. The Veteran described the pain as a seven of 10, constant and dull. The Veteran denied weakness, stiffness, or fatigability in the low back at rest. The pain was in the low back, and radiated to his right leg. The Veteran denied experiencing numbness or weakness in his lower extremities. The Veteran's posture and gait were normal. The Veteran reported that he used a back brace with flare-ups. He also used Celebrex. He was employed as a Logistics Manager. He reported limitations at work to include flare-ups with walking more than 50 to 100 yards, or standing for more than two to three minutes. He reported that he was able to perform his desk job. The Veteran's activities of daily living were reportedly not affected. On examination, there was no pain or tenderness in the lumbar spine. The Veteran's posture was erect. There was mild loss of lumbar lordosis. There was mild paravertebral spasm in the low back. There was no muscle atrophy or loss of muscle tone in the low back area. There was absence of weakness or paresthesias in both lower extremities (spelling error corrected). Range of motion testing revealed forward flexion to 60 degrees with pain at 50 degrees, right lateral flexion to 10 degrees with pain at 1 degree, left lateral flexion to 20 degrees with pain at 10 degrees, lateral rotation to 30 degrees on each side, with pain at 20 degrees, and extension to 10 degrees, with pain at 10 degrees. Range of motion following repetitive use was not additionally limited by pain, fatigue, weakness, or lack of endurance. Flare-ups were experienced with walking more than 50 yards, standing more than three minutes, frequent bending for more than two minutes, lifting objects in excess of 10 pounds, and climbing a flight of stairs. The Veteran reported that he could not run at all without flare up of his low back pain. The Veteran has an additional 30 percent limitation of daily activities during a flare-up. Flare-ups occurred almost daily and usually lasted approximately an hour and a half, during which time pain was a 10 of 10. Objectively, the Veteran experienced mild paravertebral spasms in the lumbar spine. There was no weakness in either lower extremity. Neurologic examination indicated that there was no muscle atrophy in either lower extremity. Muscle tone was normal in both lower extremities. Motor strength was equal and symmetrical in both lower extremities. There was no sensory deficit to light touch and pinprick in either lower extremity. Reflexes were one to two plus and symmetrical in both lower extremities. Regarding incapacitating episodes, the Veteran had not been advised to complete bedrest, moist heat or medication use by a physician in the previous year. A June 2007 X-ray was reviewed showing osteoarthritis of the low lumbar spine with Grade I spondylolisthesis at L4-5 and narrowing of L4-5 disc space. Diagnosis echoed the X-ray findings, which were mildly active at the time of examination. Treatment notes from March 2008 showed needle electromyogram of lumbosacral paraspinals was unremarkable. An April 2008 note reviewed a 2007 X-ray and impression was of right lower extremity buttock pain and radiculopathy for several years, and X-ray evidence of L4-5 degenerative spondylolisthesis. A May 2008 treatment note shows that the Veteran's gait was within normal limits. MRI showed Grade I L4-5 spondylolisthesis, and L4-5 degenerative disc bulge. Assessment was of low back pain and right lower extremity radiculopathy with no difficulties in activities of daily living. Private treatment notes from the Veteran's chiropractor showed that in August 2008 the Veteran was treated for spondylolisthesis, lumbago and sciatica to the right lower extremity. At his November 2009 Travel Board hearing, the Veteran reported symptoms to include walking sideways, and adjusting his right side trying to compensate for pain and cramps that ran down his leg. He described a time when his legs had given way because of his back. The Veteran's wife described his back spasms, such that his body appeared deformed. They discussed how his back disability affected him, and their relationship. The Veteran indicated that the sciatica was prominent when he stood for any length of time. Following Board remand, the Veteran was afforded a September 2010 VA examination, wherein claims folder was reviewed showing his history of low back pain with spondylosis, stenosis, degenerative joint disease, and pars defect. The Veteran reported that he had difficulties with activities of daily living, to include prolonged walking. The Veteran could not walk for more than 50 yards. He experienced tightness, stiffness, achiness of the muscles of the low back without radicular pain. He did not use a walker, cane or crutch, but used an over-the-head back brace as required. He had not been bedridden in the previous year. He reported that he had not missed work due to his back condition, although he did miss some weekend activities such as church. On examination, range of motion testing revealed forward flexion to 30 degrees, with pain at 25 degrees. Extension was to 15 degrees, with pain at 10 degrees. Lateral rotation (or possibly flexion) was from 0 to 25 degrees, with pain beginning at 20 degrees bilaterally. Lateral rotation (or possibly flexion) was from 0 to 20 degrees with pain beginning at 15 degrees bilaterally. The Board observes that the measurements given differ, although both times the reference was to "lateral rotation," which appears to be a typographical error. Typically both lateral rotation and lateral flexion are reported for purposes of determining the combined range of motion, such that there is no error in considering these ranges even if there is some uncertainty as to which reflects flexion and which reflects rotation. There were no additional limitations on repetitive motion. DeLuca criteria were considered, and there was not additional loss of range of motion due to pain, fatigue, weakness, or incoordination. There was no instability of the lumbar spine. Neurological motor exam was normal, with normal strength, and without atrophy. There were no incapacitating episodes in the previous year. Diagnosis was of degenerative joint disease, spondylosis, spinal stenosis, and pars defects of the lumbar spine. The Board has considered the Veteran's, the Veteran's spouse, co-worker and neighbors lay statements that his lumbar spine disability is worse than currently evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. In addition, his wife, co-workers and neighbor are competent to report the symptoms they have witnessed. None of these individuals is, however, competent to identify a specific level of disability of the Veteran's disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than any subjective reports of increased symptomatology at a specific disability level, and further notes that such records take into account the Veteran's reports of symptomatology. In sum, prior to March 24, 2008, forward flexion of the lumbar spine was limited to 90 degrees, and combined range of motion to 230 degrees. There was no evidence of spasm and no loss of lordosis. The Veteran's gait was at all times normal on examination, or not antalgic. There was an indication that the Veteran leaned left. The Veteran reported radiating pain to the right, with numbness and tingling. The Veteran reported that his standing was limited to 5 minutes, and his walking to 100 yards. As such, the preponderance of the evidence is against a rating higher than 10 percent, where forward flexion was greater than 60 degrees, combined range of motion was greater than 120 degrees and there was not muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. From March 24, 2008 to September 20, 2010, the Veteran's forward flexion was limited to 50 degrees with pain. There was mild loss of lumbar lordosis, and mild paravertebral spasm. The Veteran wore a back brace. He was limited to walking more than 50 yards, and standing more than 2 minutes. There was an impression of right lower extremity radiculopathy, and treatment for right lower extremity sciatica. The evidence supports a 20 percent rating from the date of examination, March 24, 2008, which showed limited forward flexion to 50 degrees with pain. The preponderance of the evidence is against a rating in excess of 20 percent where forward flexion was not limited to 30 degrees or less, and there was no indication of favorable ankylosis of the entire thoracolumbar spine. Since September 21, 2010, the Veteran's forward flexion was limited to 25 degrees. He was limited to walking 50 yards. On examination, he was without radicular pain. The evidence supports a 40 percent rating from the date of examination, September 21, 2010, which showed forward flexion limited to 25 degrees with pain. The preponderance of the evidence is against an increased rating where there is no evidence of unfavorable ankylosis of the entire lumbar spine to support the next highest rating. The Board has considered the rating criteria related to IVDS and finds that the Veteran is not entitled to a rating in excess of those already assigned based upon incapacitating exacerbations. The evidence does not show that the Veteran had incapacitating episodes, including doctor-prescribed bed rest to warrant a higher rating under the rating criteria for IVDS. The Board has also considered whether the Veteran is entitled to a separate rating for radiculopathy or sciatica of the lower extremities. A neurologic abnormality of the peripheral nerves will be rated as a "mild"" disability under 38 C.F.R. § 4.124a if the involvement is wholly sensory. The Veteran has reported experiencing radiating pain in the lower extremities. A treatment note reviewed X-ray findings and indicated that impression included lower extremity radiculopathy. Treatment records from the Veteran's chiropractor also indicated that he was treated for sciatica. On examination, sensory and motor strength testing were all normal. The evidence of record does not show the existence of associated neurologic abnormalities, such as bladder or bowel complaints. As such, the evidence is in equipoise as to whether the Veteran has mild sciatica or radiculopathy of the right lower extremity. It is noted that findings generally reveal full reflexes, no atrophy and essentially normal sensory findings. Nevertheless, appellant has complained of radiculopathy into the right leg on extended walking. There seem to be repeated finding recording this history, suggesting the presence of some pathology on the right side, in spite of the minimal objective findings recorded. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a separate 10 percent rating, but no higher, for his radiculopathy of the right lower extremity associated with his lumbar spine during the course of the appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Staged ratings have been considered for all periods on appeal, and are awarded as described. In conclusion, the evidence supports a disability rating of 10 percent prior to March 24, 2008, of 20 percent from March 24, 2008 to September 20, 2010, and of 40 percent since September 21, 2010, and no higher, for the Veteran's service-connected lumbar spine disability. Nevertheless, a separate 10 percent disability rating is warranted for the neurologic manifestations of the lower right extremity. The benefit-of-the-doubt doctrine has been applied where applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). With regard to extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran's disability picture, to include difficulty walking more than 50 yards, or standing more than a few minutes, or limited motion with pain, and radiculopathy is not so unusual or exceptional in nature as to render his schedular rating inadequate. The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2011). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the claimant or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The appellant does not meet the basic requirement for consideration of a total rating based on individual unemployability; namely, inability to maintain or sustain substantially gainful employment, where he is presently employed. 38 C.F.R. § 4.16 (2013). (CONTINUED ON NEXT PAGE) ORDER Prior to March 24, 2008, a rating in excess of 10 percent for low back disability is denied. From March 24, 2008, to September 21, 2010, a rating in excess of 20 percent for low back disability is denied. Since September 21, 2010, a rating in excess of 40 percent for low back disability is denied. For the entire time period on appeal entitlement to a separate 10 percent evaluation for right sciatica associated with low back disability is awarded, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs