Citation Nr: 1335220 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-27 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent prior to July 13, 2012, and an initial rating in excess of 40 percent from July 14, 2012, for degenerative disk disease of the low back. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from June 2002 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted service connection and an initial evaluation of 20 percent for degenerative disk disease of the low back. In June 2009, the Board (in pertinent part) denied an initial evaluation in excess of 20 percent for degenerative disk disease of the low back. The Veteran (in pertinent part) appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In August 2010, the Court granted a Joint Motion for Partial Remand of the parties (Joint Motion), vacated (in pertinent part) the Board's decision with respect to the issue of a higher initial evaluation for degenerative disk disease of the low back, and remanded the case to the Board for action consistent with the Joint Motion. In February 2011 and May 2012 the Board (in pertinent part) remanded the initial rating issue for additional development. A December 2012 rating decision granted a 40 percent rating for degenerative disk disease of the low back, effective July 14, 2012. The Veteran continued his appeal. In March 2013, the RO issued a rating decision granting a separate evaluation of 10 percent for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back, effective from November 21, 2012. This matter is on appeal as well. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This matter was most recently before the Board in May 2013 when it was remanded for additional development. As was explained by the Board in May 2013, in this case there is no inferred claim for a total disability rating based on individual unemployability (TDIU) as part and parcel of the matters decided herein. The September 2013 Informal Hearing Presentation submitted by the Veteran's accredited representative did not argue otherwise. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. FINDINGS OF FACT 1. Prior to July 14, 2012, degenerative disk disease of the low back was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; incapacitating episodes have not been shown. 2. From July 14, 2012, degenerative disk disease of the low back was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, but was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 3. During the entirety of the appellate period, left lower extremity radiculopathy was not manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to July 14, 2012, the criteria for a disability evaluation in excess of 20 percent for degenerative disk disease of the low back have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013). 2. From July 14, 2012, the criteria for a disability evaluation in excess of 40 percent for degenerative disk disease of the low back have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013). 3. The criteria for an initial disability evaluation in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Regarding these initial rating issues, as the September 2005 and March 2013 rating decisions granted service connection for degenerative disk disease of the low back and radiculopathy of the left lower extremity, those claims are now substantiated. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a Statement of the Case (SOC) if the disagreement concerning the downstream issue is not resolved. And because the RO issued the appropriate SOC in June 2006 and Supplemental SOC (SSOC) in June 2013 addressing the downstream increased rating claims, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment records have been obtained, and the Veteran has been afforded appropriate VA examinations. The most recent examination report, dated in July 2012, is adequate to decide the claims addressed herein, as it was based on a thorough clinical evaluation including consideration of the Veteran's reported symptoms, and a full review of the record. The Veteran has not identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Most recently, as directed by the May 2013 Board remand, VA treatment records dated from October 2009 to March 2013 were obtained. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, the Board will address the merits of the claim. II. Factual Background STRs note that the Veteran complained of and was treated for back pain on several occasions in service. He submitted a claim seeking service connection for a back disability in January 2005. An April 2005 VA examination report notes the Veteran's complaints of some numbness in the bilateral legs and lateral and medial aspects of both thighs. He denied bowel or bladder involvement. He denied any specific treatment therapy or physical therapy. Clinical examination reflected the gait was antalgic. He did not use ambulatory aids but walked with a knee brace. The spine had paraspinous tenderness particularly in the right side of the lower lumbar spine. He had 0-60 degrees of forward flexion, which became painful at 60 degrees. He had 0 to 20 degrees extension. There was 0-20 degrees of right sided bending, that was slightly more painful. There was 0-10 degrees of left and right lateral rotation. He was unable to toe or heel walk. Deep tendon reflexes were 1+ in the bilateral lower extremities. Babinski was negative. Straight leg raise caused pain in the low back and some mild pain radiating down the posterior aspect of the right thigh. Strength was 5/5 in the right and 4/5 in the left. X-ray studies of the back dated in a March 2005 showed well maintained disk heights and no significant degenerative changes. An April 2004 MRI scan demonstrated generalized disk bulge and degenerative disk disease and facet osteoarthritis at L4-5. There was also a small generalized disk bulge and small central disk extrusion noted that caused severe central canal stenosis, and mild facet osteoarthritis at L5-S1. A September 2005 rating decision awarded service connection for degenerative disc disease of the low back, evaluated as 20 percent disabling, effective October 28, 2004. An April 2006 VA outpatient treatment record noted the Veteran had problems with his knee and low back. He described bilateral paresthesia since a fall in Korea in 2002. He treated with medication. Clinical examination reflected positive prominence of the right sided paraspinous muscles as compare to the left. There was positive tenderness overlying the paraspinous lumbar muscles and left sacroiliac joint. Range of motion was decreased. X-ray studies of the spine showed a combination of degenerative changes and other factors produce canal stenosis at L5-S1 and minimal foraminal stenosis. There were mild degenerative changes elsewhere. The assessment was low back pain with bilateral radiculopathy spinal and foraminal stenosis on MRI. A June 2006 VA outpatient treatment record notes the Veteran's complaints of low back pain. The Veteran denied prior surgeries. The Veteran also reported radiculopathy, greater on the left side and indicated he feet felt numb. Clinical examination reflected gait was steady and posture was erect. Straight leg raise was positive in sitting and supine position. There was decreased motor strength on all muscle groups of the legs and feet at 4/5 and decreased pin on fourth toe on the right and fourth and fifth toe of left. Decreased pin was also noted on the left leg, non focal to mid thigh. Deep tendon reflexes were 1+ throughout. No clonus was noted and toes were downgoing. Heel and toe walking was okay. The Veteran had mild spondylolisthesis of L4 over l5 and canal and foraminal stenosis at that level. An April 2008 VA examination report notes the Veteran's complaints of pain and radiculopathy to the bilateral lower extremities. The Veteran denied a history of urinary or bowel involvement or erectile dysfunction. He reported bilateral numbness and paresthesias. He described decreased motion, stiffness and pain but denied fatigue, weakness and spasms. The severity of the pain was rated as moderate and described as dull. The pain radiated to the bilateral hips and to the feet. The Veteran denied any incapacitating episodes in the last year. Clinical examination reflected no spasms, atrophy, guarding or weakness. There was evidence of pain on motion and tenderness. Posture was normal and gait was antalgic with poor propulsion. There was no evidence of gibus, kyphosis, list or lumbar flattening, lumbar lordosis, scoliosis or reverse lordosis. Motor examination was 5/5 for hip flexion and extension bilaterally and 4/5 in knee extension, ankle dorsiflexion, ankle plantar flexion and great toe extension. Muscle tone was described as normal and no atrophy was noted. Sensory examination noted 1/2 pinprick and light touch in the left leg at the left lateral foot. The right leg was normal. Reflexes were normal throughout. There was no evidence of ankylosis. Active flexion was found from 0 to 60 degrees with pain beginning at 40 degrees. Passive flexion was noted to be 0 to 80 degrees. There was 0 to 10 degrees of active extension with pain from 5-10 degrees. Passive extension was found from 0-15 degrees. There was no additional loss of motion with repetitive use of the joint. There was lateral flexion and rotation from 0-30 degrees with pain from 20 to 30 degrees. Lasegue's sign was not positive. Imaging showed mild degenerative joint disease. The diagnosis was lumbar degenerative disc disease, which the examiner opined had no effect on feeding, bathing, dressing, toileting or grooming. The examiner noted the back disability had a mild effect on chores, shopping, recreation and traveling and a moderate effect on exercise and sports. The examiner concluded the Veteran had a mild to moderate lumbar spine condition with negative straight leg raise bilaterally and normal deep tendon reflexes. The extent of radiculopathy was significant per history but physical findings were not significant other than decreased range of motion and pain. Strength was decreased; however, the examiner opined that the Veteran's effort did not seem sincere, and that the apparent Veteran decrease in strength was out of proportion on exam. An April 2011 VA examination report notes that forward flexion of the spine was 50 degrees with evidence of pain. Muscle spasm, localized tenderness, or guarding was severe enough to produce abnormal gait. There was no evidence of incapacitating episodes. The claims file was not available for the examiner's review. While the Veteran's legs were assessed with respect to reflex and motor function, radiculopathy was not mentioned by the examiner. An addendum to the aforementioned examination was obtained in September 2011; however, the addendum, which was prepared by an examiner other than the individual that performed the examination, simply indicated that the examination as well as the claims file had been reviewed. No opinion was rendered as to whether any observed neurological abnormalities, such as radiculopathy, are related to the service-connected lumbar spine disorder. A July 2012 VA orthopedic examination report notes the Veteran's complaints of being unable to sit or stand for long periods of time due to back pain with radiation to the lower extremities. He also complained of incontinence several times per week. On examination, the Veteran was unable to complete range of motion testing because of complaints of severe pain and shaking. There was no muscle atrophy noted on examination. Deep tendon reflexes were 2+ in the knees and 1+ in the ankles. After reviewing the claims file, the examiner stated that the Veteran's symptoms were out of proportion to MRI and X-ray findings. The examiner also opined that the Veteran might be able to work a sedentary job if he were allowed to take breaks. A July 2012 VA nerves examination report notes the Veteran's complaints of low back pain that feels like "hot broken glass" with radiation to the lower extremities. On examination, all lower extremity nerves, to include the sciatic nerves, were normal. After reviewing the claims file, the examiner stated that the Veteran's subjective symptoms are out of proportion to MRI findings. The examiner also noted that review of the claims file revealed no EMG or NCV report to substantiate lumbar radiculopathy. A November 2012 VA spine examination report notes the Veteran's complaints of back pain, with flare-ups precipitated by lifting, straining and twisting. On examination, forward flexion was to 50 degrees with no additional loss of motion on repetitive testing. There was no muscle atrophy. Deep tendon reflexes were 2+ for the knees and right ankle, and 1+ for the left ankle. There was decreased sensation on the left lower leg and ankle. The examiner stated that there was objective evidence of mild radiculopathy, left lower extremity, which is at least as likely as not a result of the Veteran's service-connected back disability. A December 2012 rating decision awarded an increased 40 percent rating for degenerative disk disease of the low back, effective July 14, 2012. A March 2013 rating decision awarded a separate 10 percent rating for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back, effective November 21, 2012. Other VA outpatient treatment records and private medical records reflect complaints of back pain and radiculopathy; however, these records do not contain findings which can be applied to the rating schedule and as such they are not probative on this inquiry. III. Law and Analysis Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). 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. 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). 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When determining the severity of musculoskeletal disabilities such as the ones at issue, which are at least partly rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when her symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be non-compensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Code 5010. The criteria for rating traumatic arthritis under this code directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. Degenerative arthritis of the spine is to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Code 5242. Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to Intervertebral Disc Syndrome that require bed rest as prescribed by a physician and treatment by a physician. 38 C.F.R. § 4,71a, Diagnostic Code 5243. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Fifth, unfavorable ankylosis is a condition in which 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. Sixth, disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. See 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board notes that the rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, when rating for radiculopathy under Diagnostic Code 8520, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Back Prior to July 14, 2012, the evidence of record does not support an evaluation in excess of 20 percent for the Veteran's back disability. During the three VA examinations conducted during this period (2005, 2008 and 2011), flexion, at worst, was from 0 to 40 degrees with pain. As flexion was greater than 30 degrees, to include after repetitive testing, a rating in excess of 20 percent is not warranted for the period. Further, ankylosis was not demonstrated at any point during this period. While pain was noted, there was no additional limitation of motion, pain, weakness, fatigability, or incoordination following repetitive movement. As such, a higher rating is not warranted per DeLuca criteria. Moreover, as there is no evidence of record to indicate that incapacitating episodes, requiring prescribed bed rest by a physician, occurred at any point, and no evidence of prescribed bed rest currently of record, the assignment of a rating in excess of 20 percent is not warranted for this period as a result of intervertebral disc syndrome. From July 14, 2012, the evidence of record does not support an evaluation in excess of 40 percent for the Veteran's back disability. The Veteran did not cooperate with range of motion testing in July 2012, but testing in November 2012 demonstrated limitation of flexion to 50 degrees, with no additional loss on repetitive testing. As the Veteran is not shown to suffer from unfavorable ankylosis of the entire thoracolumbar, the assignment of the next higher rating of 50 percent is not warranted. Moreover, as there is no evidence of record to indicate that incapacitating episodes, requiring prescribed bed rest by a physician, occurred at any point, the assignment of a higher rating is not warranted as a result of intervertebral disc syndrome. Finally, the Board has also considered whether a separate compensable rating for neurological impairment is warranted. In this regard, the Veteran was awarded service connection for radiculopathy of the left lower extremity with an evaluation of 10 percent, effective November 21, 2012. (The issue of entitlement for an increased initial rating for this disability is discussed below.) Although the Veteran had complaints of lower extremity pain and numbness prior to November 21, 2012, the medical evidence of record does not show any objective evidence of neurological impairment of the left lower extremity due to the degenerative disk disease of the low back prior to November 2012. As noted above, the July 2012 VA examiner noted that on examination, all lower extremity nerves, to include the sciatic nerves, were normal. The examiner opined that the Veteran's subjective symptoms were out of proportion to MRI findings, and noted that review of the claims file revealed no EMG or NCV report to substantiate lumbar radiculopathy. Therefore, the Board finds that an additional award for neurological impairment is not warranted for any portion of the rating period prior to November 21, 2012. Radiculopathy of the Left Lower Extremity The Board has also considered whether the Veteran's left lower extremity radiculopathy warrants a higher scheduler rating pursuant to Diagnostic Code 8520 during the appellate period (beginning November 21, 2012). On VA examination in November 2012, no muscle atrophy was noted and reflexes were present (2+ for knees and right ankle and 1+ for left ankle). Some decreased sensation to touch was noted in the left lower leg and ankle. The VA examiner described the left lower extremity radiculopathy as "mild." Overall, the Board has determined that the Veteran's neurological disorder is properly rated at 10 percent disabling. See Diagnostic Code 8520. Conclusion In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service-connected disabilities. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, such experiencing pain in the joints and radiating pain. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of a disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have and the types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by the VA examiners are afforded the greater probative weight. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, the Board has determined that the findings and opinions provided by the VA examiners of record should be afforded the greater probative weight. Id. The above determinations are based upon consideration of applicable rating provisions. It should also be noted that there is no showing that either of the Veteran's disabilities has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The symptoms of his back disability and left leg radiculopathy have been accurately reflected by the schedular criteria. Further, the Board points out that his disability ratings encompass a degree of occupational impairment relative to those ratings. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In adjudicating the current appeal, the Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert, supra. ORDER Entitlement to an initial evaluation in excess of 20 percent prior to July 13, 2012, and an initial rating in excess of 40 percent from July 14, 2012, for degenerative disk disease of the low back, is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs