Citation Nr: 1334527 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-09 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for lumbar strain, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 2005 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied an increased rating for lumbar strain. The issue of service connection for middle back (thoracic) disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's lumbar strain limits forward flexion to 35 degrees at worse with consideration of pain and other pertinent factors, but does not result in incapacitating episodes or neurological impairment. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for lumbar strain have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters were sent February 2008 and September 2009. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). 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. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In March 2008, the Veteran was afforded a VA examination. At that time, he complained of having constant moderate back pain rated as 4/10 on a scale of 1 to 10 with 10 being worse. He reported that the pain radiated to his right anterior thigh with numbness which affected his ability to walk, restricting his ability to a half mile before flare-ups occurred. He denied having any prescribed bed rest due to incapacitating episodes due to his spine disorder. The Veteran related that he participated in physical therapy and was taking pain medication. The Veteran was currently employed, but reported that he changed positions frequently to accommodate his back pain. He had lost at least 10 days from work in the last year and had also left early on at least 15 days. His activities of daily living were affected, specifically, sleeping, dressing, bathing, toileting, and food preparations. He reported having daily flare-ups when the pain increased to 8/10. He did not use any assistive devices. Range of motion testing of the lumbar spine revealed flexion with pain at 0-70, extension with pain at 0-8, lateral flexion to the right and left with pain at 0-20, and rotation to the right and left with pain at 0-22. The examiner noted that the ranges of motion of flexion were reduced 10 degrees due to pain. There was also thoracic and lumbar spine spasm and tenderness throughout. Straight leg raising was negative for neurological complaints. Bulk was symmetrical and muscle strength was 5/5. Deep tendon reflexes were intact. Sensory was also intact with vibratory sense. The gait was antalgic. A May 2007 magnetic resonance imaging (MRI) revealed degenerative disc disease with minimal encroachment on the central canal at T-11 and T-12. The lumbar spine was negative. The diagnoses were degenerative disc disease of the thoracic spine and chronic lumbosacral strain with spasm. The Veteran later explained that his pain was worse than 4/10, but that rating was based on his pain level with medication. In September 2008, the Veteran underwent another MRI which reveled mild annular bulging at the L1-2 level, otherwise negative MRI scan. An MRI of his thoracic spine showed degenerative spinal stenosis and degenerative disc desiccation at the T5-6 through the T7-8 levels. December 2008 outpatient records noted that the Veteran was seen at the pain clinic for back pain. He also reported having weakness in his back as well as numbness in his right anterior thigh. That same month, the Veteran reported having right lower back pain. It was noted that there was no urinary dysfunction. In March 2009, the Veteran began steroid injections for back pain and pain clinic treatment. It was noted that the Veteran had thoracic and lumbar radiculitis. In June 2009, the Veteran underwent a neurology consultation for complaints of thoracic and low back pain. At that time, the Veteran indicated that he could not lie on his back and had back pain which was worse when sitting or standing. He had undergone a thoracic epidural injection which helped. Physical examination revealed that the motor evaluation was normal in tone and strength. Deep tendon reflexes were 2+ and symmetrical. Toes were downgoing. Gait and coordination revealed normal finger to nose. The Veteran could heel-toe walk and tandem walk without difficulty. The Veteran exhibited very poor posture. He had marked tenderness in the thoracic paraspinal muscles. Marked spasm was also noted. Straight leg lift and Patrick maneuvers were negative. The examiner noted that the Veteran had an abnormal DEXA scan with osteopenia. His MRIs also revealed broad-based disc protraction as well as a very minimal annular bulge at L1-2. The impression was thoracic and lumbar pain which was predominantly muscular. The Veteran's medication was increased. In October 2009, the Veteran was afforded another VA examination. The Board notes that there are typographical errors identifying the Veteran as a female. However, there is no dispute that the Veteran was examined. The Veteran complained of constant pain rated as 6/10 which was aggravated by bending and lifting. Medication provided good relief. The pain radiated down the right leg to the knee. Ambulation was not significantly affected. The Veteran had not required physician-prescribed bed rest within the past year. There had not been any surgery. The Veteran participated in physical therapy with no real relief. The Veteran had reduced his work hours due to difficulty with lifting and doctor visit. With regard to activities of daily living, the Veteran stated that he had difficulty lifting. The Veteran reported having several flare-ups a week lasting from minutes to hours, especially in the morning when there was increased pain, but no further functional impairment. The Veteran wore a back brace at work. Physical examination revealed thoracolumbar flexion to 35 degrees with pain thereafter to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right rotation to 25 degrees, and left rotation to 35 degrees, all with end of range pain. The ranges of motion were not additionally limited due to pain or fatigue following repetitive use on examination. There was mild diffuse lumbosacral and thoracic spinal tenderness, but no muscle spasm. Straight leg raising was negative bilaterally. Strength was 5/5 except for the left extensor hallucis longus strength which was 4+/5. Reflexes were 2+ and symmetric throughout. Sensory examination and gait were both normal. The diagnosis was chronic lumbar strain. The Veteran was then afforded a VA neurological examination. At that time, the Veteran reported low back and thoracic pain which radiated to his leg, worse on the left. It was noted that the pain would not go below the knee on the right and went to the toes on the left. The MRI and DEXA scan results were noted as well as the Veteran's history of epidural steroid injections. The Veteran indicated that the pain relief was short-lived and returned. He also related that he had cut back from his full-time job to part-time because of the pain. He reported that his activities of daily living were affected. On examination, the Veteran could walk without difficulty. Deep tendon reflects were 2+, bilateral and symmetric in the arms and legs. There was no muscle atrophy in either leg. The Veteran declined to hop on one foot due to back pain. When bending at the waist, the Veteran could not go below the knee with the fingertip due to pain. On sensory examination, the Veteran reported decreased sensation to primary modalities on all five digits in the right foot, the dorsum of the foot going around the ankle to the internal malleolus and then going up to the thigh. This patent of sensory loss did not follow distribution of any sensory route. The examiner opined that the Veteran had thoracic and lumbosacral muscle-type pain. However, the examiner indicated that the Veteran did not have any peripheral nerve damage by clinical examination or MRI. The Veteran is competent to report symptoms such as pain and the Board accepts his complaints as being credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). All disabilities of the spine are rated under pursuant to the General Rating Formula for Diseases and Injuries of the Spine (general rating formula) or, in the case of intervertebral disc syndrome (IVDS), either the general rating formula or the Formula for Rating IVDS based on Incapacitating Episodes. Under the General Rating Formula as applicable to the Veteran's back 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, 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 or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The 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. Note (3) states that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors note the result of the disease or injury of the spine, the range of motion of the spine in 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) indicates that each range of motion measurement should be rounded to the nearest 5. Note (5) provides that 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 of more of the following: difficulty walking because of the 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) provides that VA should separately evaluate disability of the thoracolumbar and cervical spine segments, except whether there is unfavorable ankylosis of both segments, which will be rated as a single disability. The IVDS regulation provides that IVDS (preoperatively or postoperatively) should be 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 neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 10 percent evaluation is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation 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 evaluation 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 evaluation is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. Note (1): 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. Neuritis, cranial or peripheral, 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. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. With respect to neurologic manifestations, Diagnostic Code 8520 addresses the sciatic nerve. 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. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. The VA examinations and outpatient records reflect that the Veteran has not had incapacitating episodes as defined by VA regulation during the appeal period, and the Veteran's statements do not indicate otherwise; in fact, he denied incapacitating episodes on VA examination. Consequently, the Formula for Rating IVDS based on Incapacitating Episodes is inapplicable. Likewise, although the Veteran reports radiating pain to the lower extremities, he does not have peripheral nerve impairment. Thus, a rating on this basis under Diagnostic Code 8520 or any other code is not warranted. Moreover, he has no bowel/bladder dysfunction or other neurological damage otherwise warranting a separate rating. Turning to the spine criteria, and with regard to thoracolumbar flexion, the Veteran demonstrated on both VA examinations flexion to 70 degrees. The second examination indicated that there was pain at 35 degrees, while the first examination was non-specific when the pain commenced. Thus, motion is considered to be limited to 35 degrees with consideration of the DeLuca factors. The criteria for a 20 percent rating contemplates this level of a reduction in range in motion as a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees. Although the Veteran clearly and credibly has pain on motion, it does not restrict flexion to 30 degrees or less. In fact, the most recent VA examination noted that even with repetitive use and DeLuca factors, the Veteran's motion was not additionally limited beyond that had been indicated, to 35 degrees, with consideration of pain at that point. Thus, in evaluating the severity of the back disability, the overall functional impairment due to the DeLuca factors revealed motion not restricted more than 35 degrees on forward flexion. Moreover, the Veteran demonstrates near complete motor function and strength, reflexes are normal, and sensory examination was normal even though the Veteran has sensory complaints, which, are noted, are not attributable to nerve damage A higher rating is not warranted for the Veteran's lumbar spine disability because the symptoms do not more nearly approximate the criteria for a 30 percent rating. Although the Veteran has limited his work hours, limitations in performing his job are taken into account by the 20 percent rating, see 38 C.F.R. 4.1, and his statements, while competent and credible, do not reflect symptomatology approximating the criteria for a higher, 30 percent rating. For the foregoing reasons, a schedular rating higher than 20 percent is not warranted for the Veteran's lumbar spine disability. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 20 percent. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's lumbar spine disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Veteran has not been hospitalized and marked interference has not been shown. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an increased rating for lumbar strain is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs