Citation Nr: 1333803 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 96-00 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to November 17, 2003 for low back strain with herniated nucleus pulposus L5-S1 (HNP) (back disability). 2. Entitlement to a disability rating in excess of 40 percent effective November 17, 2003 for low back strain with HNP. 3. Entitlement to a separate disability rating for neurological residuals of the Veteran's low back strain with HNP. 4. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to May 1986, with subsequent active duty for training from January 1987 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the course of the appeal, by a rating decision in March 2012, the rating for the service-connected low back disability was increased to 10 percent for the entire period on appeal, and then subsequently increased to 40 percent from November 17, 2003, but entitlement to an increased rating for the entire period remains an active issue on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2002, the file was transferred to the RO in St. Petersburg, Florida, which is currently the VA Agency of Original Jurisdiction (AOJ). Based on a May 2011 Order of the U.S. Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Remand (JMR), in December 2011, the Board remanded the issues of service connection for HNP and increased rating for low back strain. The December 2011 remand required that the AOJ obtain and associate with the claims file a medical opinion regarding the etiology of the Veteran's lumbar disc disability. If the medical examiner from the prior VA examination was not available, a new VA examination was requested. The VA examination was provided in March 2012 and the remand instructions were substantially complied with. The March 2012 rating decision granted service connection for HNP of L5-S1, effective from February 26, 1993. The AOJ provided a 0 percent (noncompensable) rating for the HNP asserting that the symptoms are the same as those already considered under the Veteran's service-connected low back strain. The issue is now listed as low back strain with HNP of the lumbar spine. The issue of entitlement to a separate disability rating for erectile dysfunction, as secondary to the Veteran's service-connected low back disability, been raised by the record in an April 2001 treatment record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Prior to November 17, 2003, the preponderance of the evidence shows that the Veteran's back disability manifests with moderate symptoms with recurring attacks, and without incapacitating episodes or severe limitation of motion. 2. From November 17, 2003, the preponderance of the evidence shows that the Veteran's back disability manifests with limitation of flexion to 30 degrees or less, but without ankylosis or incapacitating episodes. 3. From November 17, 2003, the preponderance of the evidence shows moderate radiculopathy of the left lower extremity with incomplete paralysis of the sciatic nerve. 4. From November 17, 2003, the preponderance of the evidence shows mild radiculopathy of the right lower extremity with incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for low back strain with HNP have been met for the rating period on appeal prior to November 17, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 38 C.F.R. § 4.71a, Diagnostic Codes 5292 (as in effect prior to September 26, 2003), 5293(as in effect prior to September 23, 2002). 2. The criteria for a disability rating in excess of 40 percent for low back strain with HNP have not been met at any time from November 17, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 38 C.F.R. § 4.71a, Diagnostic Codes 5292 (as in effect prior to September 26, 2003), 5293(as in effect prior to September 23, 2002), 5237, 5243 (2012). 3. The criteria for a separate disability rating of 20 percent for left lower extremity radiculopathy have been met from November 17, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8620. 4. The criteria for a separate disability rating of 10 percent for right lower extremity radiculopathy have been met from November 17, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8626. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA call for VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through a VCAA letter dated October 2003, the Veteran was informed of the information and evidence necessary to substantiate the claims. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. By a letter issued in August 2008, he was apprised of the criteria for consideration in the assignment of a disability rating and effective date, in the event of award of a benefit sought. The case was readjudicated most recently in March 2012. The Board also finds that there has been compliance with the VCAA duty to assist provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, private treatment records, Social Security Administration records, and lay evidence. No additional pertinent evidence has been identified by the Veteran. With the VCAA requirements having been met, the Board may proceed to a decision on the claims. Increased Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Shinseki, 23 Vet App 9 (2009). It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The schedular criteria for evaluating disabilities of the spine have undergone revision twice during the period in question. The first amendment, affecting Diagnostic Code 5293, was effective on September 23, 2002. The next amendment affected general diseases of the spine and became effective on September 26, 2003. The new regulations may only be applied from the date they became effective forward, regardless of whether the new criteria are more favorable to the claim; however, as of the effective date of new regulations that took effect during the pendency of the claim, the Veteran's claim should be rated pursuant to the set of criteria which is more favorable to his claim. See VAOPGCPREC 3-2000. Rating Criteria During the pendency of this appeal, the rating criteria for evaluating disabilities of the spine were amended on two occasions. The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the Veteran's spine disability is warranted. VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. However, the Veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made. See VAOPGCPREC 3-00. That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g) (West 2002). The first amendment to the Rating Schedule governing the rating of spinal disabilities pertained to the evaluation of intervertebral disc syndrome. 67 Fed. Reg. 54,345, 54,349 (Aug. 22, 2002) (effective from September 23, 2002). Under the old version for intervertebral disc syndrome Diagnostic Code 5293, a 60 percent rating was assigned for pronounced, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. A 40 percent rating was assigned for severe, recurring attacks with intermittent relief. A 20 percent rating was assigned for moderate symptoms with recurring attacks. A 10 percent rating was assigned for mild symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). Also, prior to September 26, 2003, under Diagnostic Code 5290, limitation of motion of the lumbar spine was assigned a 10 percent rating for slight limitation of motion, a 20 percent rating for moderate limitation of motion, and a maximum schedular rating of 40 percent for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (effective prior to September 26, 2003). A 40 percent evaluation may be assigned for lumbosacral strain which is severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation may be assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent evaluation is assignable with characteristic pain on motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (as in effect prior to September 26, 2003). Under the revised criteria, effective September 23, 2002, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5293, as amended by 67 Fed. Reg. 54345-54349 (August 22, 2002). A 20 percent rating is assigned with incapacitating episodes of having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. Id. Note (1): For purposes of evaluations under 5293, 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. The second revision to the Rating Schedule governing the rating of spinal disabilities was effective September 26, 2003. At that time, VA amended its Schedule for Rating Disabilities, 38 C.F.R. Part 4, to institute a general rating formula for evaluating diseases and injuries of the spine. Under the revised criteria, lumbosacral or cervical strain will be evaluated 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 § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2012). Under the General Rating Formula as applicable to the Veteran's thoracolumbar spine disability, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The revised rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. The criteria with respect to evaluating intervertebral disc syndrome based on incapacitating episodes, effective from September 26, 2003, were essentially unchanged from the revised criteria of September 23, 2002. Note (1) provided 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. (38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, effective September 26, 2003.) Facts The Board will analyze this matter under each of the three consecutive sets of applicable rating criteria in turn. As the Board will be applying the facts of the case to multiple periods of time under different rating criteria and staged rating periods, the Board will set forth the facts of the case in their entirety, as to reduce repetition and ease clarity. A private October 1999 treatment record showed a complaint of back pain and leg pain with numbness in the lower extremities. The examiner noted increasing back symptoms and leg symptoms. He had some numbness associated with the lower extremities bilaterally. The right side also had some pain associated. The examiner noted significant pain and functionally compromised. The Veteran's sensory deficits were greater in the left than the right. The examiner diagnosed radiculopathy of the lower extremities. An April 2000 VA treatment record showed that the Veteran had full range of motion. An October 2000 private treatment record showed no muscle spasms and no tenderness on palpation of his spine. The Veteran showed decreased sensation in the left thigh and leg. He had no lower extremity motor deficit. The rest of the general examination was unremarkable. A November 2000 treatment record showed decreased sensation to pain and vibration in the left L5 area. Motor strength was 4/5 in the left lower extremity. A February 2001 private treatment record showed minimal tenderness around the lumbar spine. Trunk flexion was 75 degrees. Extension and lateral extension were fair without pain. The examiner noted decreased sensation in the left lower extremity over his left thigh and leg. He found no sensory deficit in the right lower extremity and no motor deficit in either lower extremity. In September 2002, the Veteran experienced an increase in right lower extremity pain, which extended down to his toes. He also had back pain after sitting, standing, or walking for prolonged periods of time. The Veteran was afforded a VA examination on November 17, 2003. The Veteran ambulated with a cane with a right lower extremity moderate antalgic gait. The Veteran's forward flexion was measured at 20 degrees with severe spasticity from L3 to S1. Side bending was 10/30, rotation was 0/30, and extension was 0/30. The examiner noted that the Veteran has extended sensation L5 and S1 dermatomal distribution of the left lower extremity. X-rays showed scoliosis secondary to lumbar mild spasm. The Veteran did not receive repetitive motion testing. The examiner diagnosed status post lumbar laminectomy L5/S1 fusion with residual bilateral lower extremity polyradiculopathy rated as severe. In April 2008, a private examiner noted some mild tenderness in the lower left lumbar back area. In July 2008, the Veteran reported pain in the left lower extremity. The examiner diagnosed lumbar radiculopathy bilaterally. The Veteran was afforded a VA examination in October 2008. The examiner noted decreased motion of the lower back as well as radiation of pain down the bilateral legs. The examiner noted guarding, pain with motion, and tenderness. He noted no muscle spasm, localized tenderness, or guarding severe enough to be responsible for an abnormal gait or abnormal spinal contour. The left lower extremity showed decreased strength and sensation examinations. Ankle jerk and knee jerk reflexes were absent bilaterally. Range of motion showed flexion to 30 degrees with pain at 30 degrees, extension to 10 degrees with pain at 10 degrees, bilateral lateral flexion to 30 degrees with pain at 30 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. The examiner performed repetitive use testing, which resulted in no additional loss of motion. The Veteran was afforded a VA examination in March 2012. The examiner diagnosed back strain. Range of motion testing showed forward flexion to 30 degrees with pain at 30 degrees, extension to 20 degrees with pain at 20 degrees, bilateral lateral flexion to 30 degrees with pain at 30 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. The examiner performed repetitive use testing, but found no additional limitation in range of motion testing due to repetition and no functional loss or functional impairment of the thoracolumbar spine. He noted no guarding or muscle spasms. The examiner specifically found that the Veteran does not have intervertebral disc syndrome. Regarding neurological findings, the Veteran exhibited radicular pain, numbness, and paresthesias, mild in the right lower extremity and moderate in the left lower extremity. The radiculopathy involved the L2/L3/L4 femoral nerve roots bilaterally, and the L4/L5/S1/S2/S3 sciatic nerve roots on the left side. The examiner noted mild radiculopathy in the right lower extremity and moderate radiculopathy in the left lower extremity. The examiner reviewed the file and found that the Veteran did have signs of radiculopathy when he injured his back in 1986. In addition to these objective findings, the Veteran consistently reported pain and limitation of motion. Analysis Prior to November 17, 2003 The rating period on appeal is from February 26, 1993, the date of receipt of the increased rating claim. However, increased disability compensation may be effective from the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim was received within one year from such date. 38 C.F.R. § 3.400(o)(2) (2002). Under the criteria in effect prior to September 26, 2003 for Diagnostic Code 5295, for rating lumbosacral strain, to warrant the next higher, 20 percent evaluation, the criteria contemplate muscle spasm on extreme forward bending, loss of unilateral lateral spine motion in a standing position. Although the clinical records dated prior to November 2003 reflect complaints of low back pain, there was no demonstration of lateral spine motion. A private treatment record dated in October 2000 showed no muscle spasm. Under the criteria in effect prior to September 26, 2003, to warrant the next higher, 20 percent, evaluation under Diagnostic Code 5292, for rating limitation of motion of the lumbar spine, the rating criteria contemplate moderate limitation of motion of the lumbar spine. As noted above, the Veteran had full range of motion on VA treatment in April 2000, and had trunk flexion to 75 degrees reported in a February 2001 private treatment record. As these objective findings reflect only 15 degrees loss of full range of flexion, the Board does not find that such constitutes moderate limitation of motion of the lumbar spine. Under the criteria in effect prior to September 23, 2002, the criteria for the next higher, 20 percent, evaluation under Diagnostic Code 5293, contemplate moderate intervertebral disc syndrome with recurring attacks. The Board finds that the Veteran's back disability was manifested by moderate symptoms. The Veteran's range of motion was only mildly limited. He showed no demonstrable muscle spasm and only limited tenderness. Although he did experience some neurological symptoms they did not manifest to a level that more closely approximates demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. The Veteran experienced intermittent relief during this period. The Board finds that the Veteran's disability was manifested by moderate symptoms with recurring attacks. Therefore, a disability rating of 20 percent, but no more, is warranted prior to November 17, 2003. The Board notes that the evidence does not show incapacitating episodes prior to November 17, 2003. As such, the provisions of Diagnostic Code 5293, as amended effective September 23, 2002, for rating the disability at issue based on incapacitating episodes, cannot afford a higher rating. Moreover, based on the discussion above, separate evaluation of the orthopedic manifestations (noncompensable under Diagnostic Code 5292) and neurologic manifestations (20 percent under Diagnostic Code 5293), when considered with his other service-connected disabilities of duodenitis with irritable bowel syndrome (rated 10 percent) and left shoulder dislocation (rated 10 percent), would result in the same combined 30 percent evaluation. From November 17, 2003 The Board must consider the period from November 17, 2003 under both the earlier revisions and the current versions of the Diagnostic Codes. The Veteran is entitled to whichever results in a higher evaluation. Under the criteria of Diagnostic Code 5293, effective prior to September 23, 2002, to warrant the next higher, 60 percent evaluation, there must be demonstration of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). The evidence clearly indicates neurological symptoms with little relief. The Veteran experienced pain, muscle spasm, radiculopathy, numbness, and decreased motor strength of the lower extremities, in addition to limitation of motion of the spine with painful motion. As such, the Board finds that the criteria for a 60 percent disability rating have been met under Diagnostic Code 5293, as in effect prior to September 23, 2002. However, the Board must also consider whether the Veteran would be entitled to a higher disability rating by separately rating his orthopedic and neurological symptoms. Under the prior version, the Veteran's neurological and orthopedic symptomatology may be combined, along with all other service-connected disabilities, if it results in a higher evaluation than one based on incapacitating episodes. There has been no demonstration of incapacitating episodes from November 17, 2003. Although on VA examination in November 2003 the Veteran complained of 2-3 episodes per week that required a day of bed rest, the record does not reflect that the Veteran has been prescribed such bed rest by a physician. In November 2003 the Veteran's forward flexion was measured at 20 degrees with severe spasticity from L3 to S1. Side bending was 10/30, rotation was 0/30, and extension was 0/30. In October 2008 range of motion showed flexion to 30 degrees with pain at 30 degrees, extension to 10 degrees with pain at 10 degrees, bilateral lateral flexion to 30 degrees with pain at 30 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. In March 2012 range of motion testing showed forward flexion to 30 degrees with pain at 30 degrees, extension to 20 degrees with pain at 20 degrees, bilateral lateral flexion to 30 degrees with pain at 30 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less. Therefore, the Veteran's orthopedic manifestations would receive a 40 percent disability rating, which is currently assigned. Any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2012). A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. Diagnostic Codes 8526, 8626, and 8726 provide ratings for paralysis, neuritis, and neuralgia of the femoral nerve. 38 C.F.R. § 4.124a. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 30 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8626 (2012). A disability rating of 40 percent is warranted with complete paralysis of the femoral nerve. Id. The Board notes that in rating diseases of the peripheral nerves, the term "incomplete paralysis" 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In October 1999, a private treatment record indicated that the Veteran had radiculopathy of the lower extremities. A February 2001 private treatment record showed lower extremity radiculopathy bilaterally. In July 2002, the Veteran exhibited decreased sensation in the lower extremities. The Veteran was afforded a VA examination in November 2003 that reported chronic bilateral lower extremity radiculopathy. Treatment records from December 2007 through July 2008 also showed a diagnosis of radiculopathy and associated pain in the lower extremities. In the March 2012 VA examination, the examiner found radicular pain. The Veteran's sensation to light touch was absent in the left lower extremity. Additionally, the examiner noted moderate radicular pain in the left lower extremity and mild radicular pain in the right lower extremity. He noted involvement of the femoral nerve bilaterally and sciatic nerve on the left. As the left lower extremity radiculopathy causes incomplete paralysis of the sciatic nerve with moderate symptoms, the Board finds that a 20 percent disability rating would be warranted. As the right lower extremity radiculopathy causes incomplete paralysis of the femoral nerve with mild symptoms, the Board finds that a 10 percent disability rating would be warranted. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8526. When combining the 40 percent for orthopedic evaluations, the 20 percent for left lower extremity radiculopathy, and 10 percent for right lower extremity radiculopathy, the combined total is 60 percent, to be combined with the ratings for the other service-connected disabilities. As the new and old regulations would result in a total of 60 percent, the Board will maintain the Veteran's 40 percent disability rating for the low back disability, but add separate ratings at the level of 20 percent for left lower extremity radiculopathy and 10 percent for right lower extremity radiculopathy. The Board chooses to assign the separate ratings under the new criteria as it allows for a potential greater evaluation for each neurological manifestation in the future, whereas the old criteria encompasses all neurological manifestations within the 60 percent. Therefore, the Board finds that entitlement to a disability rating in excess of 40 percent for low back strain with HNP is not warranted from November 17, 2003; however separate evaluations of 20 percent for left lower extremity radiculopathy and 10 percent for right lower extremity radiculopathy are warranted. DeLuca Consideration The Board notes that the criteria set forth in DeLuca have been addressed throughout the entire period on appeal. Although the Veteran experiences pain with motion, any limitation of motion due to pain and repetition has been considered in the application of the Veteran's symptoms to the rating criteria. 38 C.F.R. § 4.71a. The VA examiners addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995), and specifically noted any change in range of motion findings due to pain or repetition. The Veteran did report pain; however, the Board finds that the Veteran's complaints of pain do not impair the Veteran's functioning to the degree required to more closely approximate a higher rating for the service-connected low back disability. Mitchell v. Shinseki, 25 Vet.App. 32 (2011). Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the severity and symptomatology of the service-connected low back disability. The Veteran's service-connected low back disability is manifested by limitation of motion, painful motion, and lower extremity radiculopathy. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned staged evaluations. Rather, his description of orthopedic and neurological symptomatology of his low back disability is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the service-connected low back disability and referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a disability rating of 20 percent, but no more, prior to November 17, 2003 for low back strain with HNP is granted. Entitlement to a disability rating in excess of 40 percent effective November 17, 2003 for low back strain with HNP is denied. Entitlement to a separate 20 percent disability rating for radiculopathy of the left lower extremity is granted. Entitlement to a separate 10 percent disability rating for radiculopathy of the right lower extremity is granted. REMAND The Court has held that entitlement to a total disability for compensation purposes based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Board has granted a separate disability rating for neurological manifestations of the Veteran's service-connected low back disability. Therefore, the Veteran may now meet the schedular criteria for TDIU. As such, a VA examination to determine if the Veteran is unemployable due to his service-connected disabilities is necessary. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any inability to maintain substantially gainful employment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. VA should obtain and associate with the claims file all outstanding VA treatment records. If such records cannot be obtained or if no such records exist, the RO should document such findings. 3. After associating all pertinent outstanding records with the claims file, schedule the Veteran for a VA examination regarding entitlement to TDIU. The examiner should review the claims file and address the following question: * Whether it is at least as likely as not that, at any time during the rating period on appeal, the Veteran's service-connected disabilities, considered in combination, (without consideration of his age or non-service- connected disabilities), rendered him unable to secure or maintain a substantially gainful occupation. * If it is the examiner's opinion that the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. All findings and conclusions should be set forth in a legible report. 4. Then, readjudicate the appeal. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs