Citation Nr: 1333941 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-23 119A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating greater than 40 percent for degenerative arthritis of the lumbar spine with bilateral lower extremity radiculopathy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Army from April 1943 to March 1946. This case comes to the Board of Veterans' Appeals (Board) on appeal from January 2007, March 2008, and July 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran filed his increased rating claim in July 2006. After he filed his increased rating claim, additional, pertinent medical evidence was submitted and received prior to the expiration of the one-year appeal period for each of the rating decisions listed above. See 38 C.F.R. § 3.156(b) (new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). Thus, any interim submissions before finality attached must be considered by VA as part of the pending appeal for the July 2006 increased rating claim. See also Bond v. Shinseki, 659 F.3d 1362, 1366-68 (2011); Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007); see also Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). In addition, during the course of the increased rating appeal for a lumbar spine disability, the Veteran also submitted evidence of unemployability due to service-connected disabilities, including the lumbar spine. See January 2009 notice of disagreement (NOD); July 2009 VA Form 9; March 2009 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). As such, it follows that a request for TDIU was reasonably raised. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Therefore, the issue of entitlement to a TDIU is presently on appeal before the Board. The Veteran cancelled his request for a videoconference hearing in September 2013. Therefore, the videoconference hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2013). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from 2010 to 2012, which are pertinent to the present appeal. However, these records were reviewed by the RO in the February 2013 supplemental statement of the case (SSOC). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the lumbar spine is not productive of unfavorable ankylosis of the entire spine; unfavorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least at least 6 weeks during the past 12 months. 2. The Veteran has mild radiculopathy in both lower extremities that is associated with his service-connected degenerative arthritis of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating higher than 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria have been met for a separate 10 percent rating, but no greater, for radiculopathy of the right lower extremity, associated with the service-connected lumbar spine disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2013). 3. The criteria have been met for a separate 10 percent rating, but no greater, for radiculopathy of the left lower extremity, associated with the service-connected lumbar spine disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist For the increased rating issue, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in September 2006 and April 2007. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the September 2006 and April 2007 VCAA letters advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the September 2006 and April 2007 VCAA notice letters advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice, and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. The September 2006 and April 2007 VCAA letters were fully sufficient. Thus, the Veteran has received all required notice in this case for his increased rating claim, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With regard to the timing of VCAA notice, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the respective rating decisions on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, VA treatment records, private medical evidence as authorized by the Veteran, and several VA examination reports. For his part, the Veteran has submitted personal statements, argument from his representative, and private medical evidence. The Veteran was scheduled for a Board videoconference hearing in September 2013, but he cancelled his request. The Veteran was also afforded VA examinations in October 2006, May 2007, March 2009, and April 2011 in connection with his claim for an increased evaluation for his service-connected lumbar spine disability. The Board finds that these VA examinations obtained are adequate, as they were predicated on a review of the Veteran's medical history as well as on an examination and fully address the rating criteria that are relevant to rating the lumbar spine disability in this case. The examinations also considered functional loss and whether there were incapacitating episodes. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected lumbar spine disability since he was last examined in April 2011. 38 C.F.R. § 3.327(a). Indeed, there is no lay allegation or medical evidence revealing any worsening of the lumbar spine disability since that time. In addition, in the present decision, the Board is granting separate, additional 10 percent ratings for both the right and left lower extremities due to disability associated with the service-connected lumbar spine. In any event, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his increased rating and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). VA regulation indicates that the Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - Increased Evaluation for Lumbar Spine The Veteran's degenerative arthritis of the lumbar spine with bilateral lower extremity radiculopathy disability has been assigned a 40 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (degenerative arthritis). This 40 percent rating has remained in effect since February 28, 2002. Originally, the RO rated the Veteran's lumbar spine disability as intervertebral disc sydrome, assigning a 40 percent rating under the previous criteria of Diagnostic Code 5293, intervertebral disc syndrome, for severe recurring attacks with intermittent relief. 38 C.F.R. § 4.71a (2002). In establishing a 40 percent rating, the RO combined both the orthopedic manifestations (20 percent) and neurologic manifestations (i.e., 10 percent and 10 percent for each lower extremity) for IVDS in accordance with 38 C.F.R. § 4.25 (the combined rating table). A lumbar spine disability can be evaluated under multiple diagnostic codes. In the present case, the Board will rate the Veteran's lumbar spine disability under Diagnostic Code 5243 because intervertebral disc syndrome has been shown by the evidence of record. Diagnostic Code 5243 also provides the potential for the most favorable rating for the Veteran. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The Veteran filed an increased rating claim for his service-connected lumbar spine disability in July 2006. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his lumbar spine disability has been more severe than at others, and rate it accordingly. The criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In this case, the Veteran's increased rating claim was received by the RO in July 2006, which was subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The September 2003 amendments indicate that intervertebral disc syndrome, (preoperatively or postoperatively) can 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 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine is as follows: 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: A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 of more of 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, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. 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 is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: A 10 percent rating requires 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. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, 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: 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation in excess of 40 percent for his service-connected lumbar spine disability. 38 C.F.R. § 4.7. Specifically, as to orthopedic manifestations of the lumbar spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire thoracolumbar spine warranting a higher 50 percent evaluation. 38 C.F.R. § 4.71a. In fact, there is no diagnosis of ankylosis at all in the evidence of record. Range of motion findings, although limited at times, do not reveal unfavorable ankylosis or even favorable ankylosis. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the range of motion findings of the lumbar spine throughout the appeal, it is apparent that the Veteran's lumbar spine is not fixated or immobile with fibrous or bony union. That is, even when considering the Veteran's complaints of pain and other functional loss factors, the evidence does show that there is functional loss more nearly approximating ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the October 2006 VA examination found the Veteran to have 50 degrees lumbar flexion, 0 degrees extension, 10 degrees of right and left lateral flexion, and 40 degrees of right and left rotation. Pain and discomfort were only noted on the extreme end of these motions. Repetitive motion and pain were considered. There was specific documentation of no flare-ups. The May 2007 VA examination also recorded 80 degrees lumbar flexion, 10 degrees extension, 10 degrees of right and left lateral flexion, and 30 degrees of right and left rotation. Repetitive motion and pain were considered, but there were no additional limitations after three repetitions of range of motion. There was also a specific finding of no thoracolumbar spine ankylosis. In addition, the March 2009 VA examination assessed 80 degrees lumbar flexion and 30 degrees extension with pain, 35 degrees of right and left lateral flexion when considering pain, and 30 and 35 degrees of right and left rotation when considering pain. It was noted that the Veteran could not bend, push, or pull due to his lumbar spine and he was not able to function in a normal occupational environment. Finally, the April 2011 VA examination found him to have 60 degrees lumbar flexion, 8 degrees extension, 8 and 12 degrees of right and left lateral flexion, and 30 degrees of right and left rotation. Pain and discomfort were only noted on the extreme end of these motions. Repetitive motion and pain were considered, but there was no further change in range of motion. There was specific documentation of "no flare-ups." With regard to ankylosis, the Board has considered the October 2006 VA examiner's observation that the Veteran "walks with his lumbar spine forward flexed at about 20 degrees at all times"; the January 2007 Schenectady Regional Orthopedic record noting that the Veteran has "a list forward"; the May 2007 VA examiner's indication that Veteran was stooped with his head "thrusted forward"; and the February 2010 private physical therapy record noting that the Veteran "seems to be relatively fixed in a posterior pelvic tilt." However, the May 2007 VA examiner explained this symptomatology was due to a diagnosis of "scoliosis", with a specific finding of no thoracolumbar spine ankylosis. With regard to functional loss, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. However, an increased evaluation for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness or weakened movement or excess fatigability or incoordination in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. The Board has considered the competent and credible lay evidence from the Veteran and his spouse when considering functional loss. The Board observes that the Veteran has complained of "constant" low back pain and spasms on numerous occasions. He uses a cane to walk and a walker at times, and he takes pain medication and undergoes physical therapy. If he walks 100 yards, his back pain increases. The Veteran had to stop part-time work as substitute teacher in 2008 due in part to difficulty moving, sitting, and standing from his lumbar spine. He reports that he cannot climb, kneel, bend, push, pull, reach above his shoulder, or operate machinery. He can only drive his car short distances, although he can still engage in routine activities of daily living. Regardless, the effect of the pain and other factors in the Veteran's lumbar spine is contemplated in the 40 percent rating assigned above for his orthopedic manifestations. Indeed, the evidence does not show that pain or other factors cause functional loss more closely approximating favorable or unfavorable ankylosis. The Court has held that pain in itself does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, with regard to incapacitating episodes, the evidence of record does not show the Veteran to have had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As previously noted, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least six weeks. In fact, the October 2006, March 2009, and April 2011 VA examiners specifically noted there were no incapacitating episodes. Thus, a rating above 40 percent is not warranted for the Veteran's lumbar spine under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the Board concludes that an evaluation in excess of 40 percent is not warranted for the Veteran's degenerative arthritis of the lumbar spine. 38 C.F.R. § 4.3. Analysis - Separate Ratings for Bilateral Lower Extremity Radiculopathy As discussed above, the Veteran is already service-connected for neurological manifestations (bilateral lower extremity radiculopathy), associated with his lumbar spine degenerative disc disease. Under the previous rating criteria prior to September 2002, the RO considered the Veteran's bilateral lower extremity radiculopathy symptoms within the 40 percent rating assigned under Diagnostic Code 5293, intervertebral disc syndrome, for severe recurring attacks with intermittent relief. 38 C.F.R. § 4.71a (2002). However, the Court has held that neurological symptoms of the lumbar spine can warrant separate disability ratings under the diagnostic codes pertinent to rating neurological disorders. See e.g., Bierman v. Brown, 6 Vet. App. at 129-132 (1994). Under the current rating criteria for the spine, Note (1) of the General Rating Formula for Diseases and Injuries of the Spine states that VA "should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code." See 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating. Moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warranted for a 40 percent rating. Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In this case, the evidence of record demonstrates mild neurological impairment due to bilateral lower extremity radiculopathy, thereby warranting separate, 10 percent ratings for the right and left lower extremities. 38 C.F.R. § 4.7. Specifically, an October 2006 VA spine examiner noted that the Veteran's reflexes were absent in both ankles, and sensation and pinprick were decreased. A May 2006 private report from Schenectady Neurological Consultants revealed persistent numbness in the toes and tingling in the feet, and vibratory sensation was absent at the toes. Reflexes were also absent at the ankles. A November 2006 private report from Schenectady Neurological Consultants described constant numbness in the toes and tingling in the feet, and the temperature was somewhat diminished. Reflexes were absent at the ankles, and diminished at the knees. A January 2007 private report from Schenectady Neurological Consultants found that the Veteran's reflexes were diminished, his straight leg raise was negative, and sensation was diminished in the lower extremities. A May 2007 statement of the Veteran noted constant numbness in the feet. A May 2007 VA spine examiner remarked that the Veteran reported bilateral numbness and paresthesias in the bilateral arches into the toes. Pain was confirmed. He showed no reflexes in the lower extremities. The Veteran reported weakness in feet, but this was not objectively confirmed. In fact, he exhibited full motor strength in the ankles (strength was 5/5). A March 2009 VA examiner assessed a normal neurological examination. Community Care private treatment records dated in March 2009, May 2010, and April 2011 documented neuropathy and numbness of the feet, especially at night. Pain was also reported, and sensory changes, diminished sensation, hyperesthesia, and sensitivity were elicited. A February 2010 private physical therapy report mentioned numbness and radicular symptoms in the lower extremities. The Veteran had no reflexes in the ankles. An April 2011 VA spine examiner documented the Veteran's complaints of bilateral foot numbness. Upon examination, straight-leg raising was positive on the right. Reflexes were absent in both ankles, and sensation to pinprick was decreased to both feet. All of the above evidence provides strong support for separate 10 percent ratings for radiculopathy of both the right and left lower extremity. However, the evidence of record does not reflect higher separate ratings above the 10 percent ratings assigned for the Veteran's bilateral lower extremity radiculopathy. 38 C.F.R. § 4.7. In other words, the medical and lay evidence of record does not establish manifestations consistent with "moderate" or "moderately severe" or "severe" radiculopathy of the lower extremities. The Veteran's lay statements and the medical evidence of record document that there was no atrophy, no abnormal muscle tone or bulk, no complete paralysis, no objective weakness, no organic changes, and no foot drop of the lower extremities. Specifically, the October 2006 VA spine examiner noted full motor strength in the lower extremities (strength was 5/5). A May 2006 private report from Schenectady Neurological Consultants also revealed straight leg raising was negative. There were no deformities, edema, or discoloration. He had normal tone and bulk in the lower extremities, with only "minimal" findings of peripheral neuropathy. Moreover, a November 2006 private report from Schenectady Neurological Consultants described full strength, no change in tone, no motor abnormalities, and no atrophy in the lower extremities. A May 2007 VA spine examiner confirmed that the Veteran exhibited full motor strength in the ankles (strength was 5/5). There was normal tone and no atrophy. Community Care private treatment records dated in March 2009, May 2010, and April 2011 also found no motor weakness, and motor strength was symmetrical with no obvious weaknesses. An April 2011 VA spine examiner determined that motor strength was normal in the lower extremities (strength was 5/5). All of this evidence weighs heavily against higher 20 percent ratings for radiculopathy of the lower extremities. With regard to lay evidence, although the Veteran is competent and credible to describe his bilateral lower extremity radiculopathy symptomatology (see Barr v. Nicholson, 21 Vet. App. 303, 310 (2007)), the lay statements of the Veteran and his spouse generally do not provide a description of symptoms that would be indicative of ratings above 10 percent for each lower extremity. In addition, his complaints of lower extremity weakness were not objectively confirmed on multiple occasions during both private and VA clinical testing. In conclusion, separate 10 percent ratings, but no greater, for mild radiculopathy of the right and left lower extremities, associated with the Veteran's lumbar spine disability, are granted. 38 C.F.R. § 4.3. Hart Consideration Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), the Board has determined that there is no basis to "stage" the Veteran's 40 percent rating for his service-connected lumbar spine disability. In addition, the separate 10 percent ratings granted in this decision for radiculopathy of both lower extremities should be effective throughout the entire appeal period. Extraschedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration, for the Veteran's service-connected degenerative arthritis of the lumbar spine with bilateral lower extremity radiculopathy. 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran's lumbar spine symptomatology is fully addressed by the rating criteria under which his disability is rated. Because the rating criteria reasonably describe the claimant's disability level and symptomatology for his lumbar spine and lower extremities, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran's lumbar spine disability that would render the schedular criteria inadequate. There are no additional symptoms of his lumbar spine disability that are not addressed by the Rating Schedule. In assigning the current 40 percent rating for the lumbar spine, and both 10 percent ratings for the bilateral lower extremity radiculopathy, the Board has considered the factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Although the Veteran's lumbar spine disability interferes with his ability to work, (see e.g., all VA examinations of record), such interference is also contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Because the threshold step of Thun is not met here, and the Veteran's lumbar spine disability picture is contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms," such as marked interference with employment or frequent periods of hospitalization. 22 Vet. App. at 116. See also 38 C.F.R. § 3.321(b)(1). Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected degenerative arthritis of the lumbar spine with bilateral lower extremity radiculopathy under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An increased rating greater than 40 percent for degenerative arthritis of the lumbar spine is denied. Subject to the provisions governing the award of monetary benefits, a separate 10 percent disability rating for radiculopathy of the right lower extremity is granted. Subject to the provisions governing the award of monetary benefits, a separate 10 percent disability rating for radiculopathy of the left lower extremity is granted. REMAND Before addressing the merits of the remaining TDIU claim, the Board finds that additional development of the evidence is required. As discussed above, a claim for a TDIU was raised by the record during the course of the increased rating appeal. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). VA's Office of General Counsel has stated that, when the issue of entitlement to a TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the RO is necessary with respect to TDIU, the Board should remand, rather than refer, the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). In the decision above, the Board has granted separate 10 percent disability ratings for right and left lower extremity radiculopathy. As a result, this case must be returned to the RO/AMC for the assignment of separate 10 percent disability ratings and effective dates for those grants. Subsequently, the RO/AMC must then reconsider whether the Veteran is entitled to a TDIU. Therefore, the TDIU issue is remanded for further development and adjudication. Accordingly, the TDIU issue is REMANDED for the following action: After assigning separate 10 percent disability ratings and effective dates for the service-connected right and left lower extremity radiculopathy, the RO/AMC should readjudicate the TDIU issue on appeal, in light of all the evidence of record. Any development deemed necessary should also be completed. If the benefit sought is not granted for TDIU, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs