Citation Nr: 1339741 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 07-31 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for intervertebral disc syndrome (IVDS) prior to March 10, 2006. 2. Entitlement to an evaluation in excess of 10 percent for IVDS since May 1, 2006. 3. Entitlement to an evaluation in excess of 10 percent for left lower extremity radiculopathy. 4. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from September 1989 to November 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted a temporary evaluation of 100 percent effective March 10, 2006 to May 1, 2006 based on surgical treatment necessitating convalescence, and then resumed the 10 percent disability rating for IVDS from May 1, 2006. Jurisdiction currently lies with the RO in Hartford, Connecticut, where the Veteran resided when the claim was originally filed. Following certification to the Board and following the Board's remand in March 2011, the claims file indicates that the Veteran moved to Sparks, Nevada, for a job, and now resides in the jurisdiction of the RO in Reno, Nevada. As the assignment of a 100 percent rating from March 10, 2006 to May 1, 2006 is a grant of the maximum benefit allowable, this period therefore is not on appeal. As 38 C.F.R. § 3.400(o) (2) allows for the retroactive award of benefits from the earliest date as of which an increase in disability is factually ascertainable if the claim for an increased evaluation is received within one year from such date, the Board must consider the period prior to June 20, 2006, the date of receipt of the claim for increase. The specific stages on appeal of the disabilities listed on the cover page will be discussed in detail below. In March 2011, the Board remanded the Veteran's claim for further development, to include additional treatment records and a VA examination. The requested action was taken, and there has been substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998), see also Dyment v. West, 13 Vet. App. 141 (1999). During the pendency of the remand, a March 2012 rating decision granted service connection for left and right lower extremity radiculopathy as secondary to the Veteran's service-connected IVDS effective June 20, 2006, the date of the receipt of claim for an increased evaluation. A 10 percent disability rating was assigned. Although the RO granted a claim for service connection, as discussed below, the Board finds that the issue of radiculopathy is part of the criteria applied to the evaluation of the increased rating for the IVDS, and therefore within the Board's jurisdiction to consider in this case. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However in this case, the evidence indicates that the Veteran is currently employed full-time. Accordingly, the question of entitlement to TDIU has not been inferred. In an April 2011 correspondence to the Appeals Management Center (AMC), the Veteran stated that he had started developing problems in both his knees and his doctor believed that it was due to his back and leg problems. From these statements it appears he may be raising a claim for secondary service connection for knee disabilities. Also, in his notice of disagreement (NOD) in December 2006, the Veteran stated that his back pain causes him mental anguish, "considered psychiatric help as consequence of the pain." In the April 2011 correspondence to the AMC, he also stated that his pain causes moodiness and lack of concentration. It also appears he may be raising a claim for secondary service connection for a psychiatric disability. Since these claims were not developed or adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction, and therefore they are REFERRED to the AOJ for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. Prior to March 20, 2006, the Veteran's back disability was manifested by complaints of pain with unknown limitation of motion and other functions, and there were no incapacitating episodes. 2. Since May 1, 2006, the Veteran's back disability is manifested by limitation of flexion of the lumbar spine to greater than 60 degrees; there were no incapacitating episodes. 3. Since December 29, 2005, the Veteran's left lower extremity radiculopathy is manifested by complaints of weakness, pain, numbness and some loss of sensation at all relevant times during the appeal period; and no more than moderate incomplete paralysis is shown. 4. Since June 20, 2006, the Veteran's right lower extremity radiculopathy is manifested by complaints of weakness, pain, numbness and some loss of sensation at all relevant times during the appeal period; and no more than moderate incomplete paralysis is shown. CONCLUSIONS OF LAW 1. Prior to March 1, 2006, the criteria for an evaluation in excess of 10 percent for IVDS are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 2. Since May 1, 2006, the criteria for an evaluation in excess of 10 percent for IVDS are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 3. The criteria for an evaluation of 20 percent, but not greater, for the service-connected Veteran's left lower extremity radiculopathy were met from December 29, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2013). 4. The criteria for an evaluation of 20 percent, but not greater, for the service-connected Veteran's right lower extremity radiculopathy were met from June 20, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A July 2006 letter, which was provided to the Veteran prior to the initial adjudication of his claim in November 2006, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating his claims, as well as regulations pertinent to the establishment of an effective date and of the disability rating . Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the agency of original jurisdiction (AOJ) substantially complied with the March 2011 remand orders and no further action is necessary in this regard. The RO sent the Veteran a post-remand duty-to-assist letter in April 2011 requesting any additional evidence in support of his claim, and also informed the Veteran of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a March 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical treatment records have been obtained; all private treatment records identified by the Veteran have been obtained as well. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. As such, the Board is not on notice that relevant, outstanding Social Security disability records exist in this case, and the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). A VA examination was conducted in August 2006. Pursuant to the Board's March 2011 remand, the Veteran was afforded another a VA examination in August 2011 to address the current severity of his back disability. Both examiners made all required clinical findings and discussed the functional impact of the back disability on the Veteran's daily life. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the August 2006 and August 2011 examinations are fully adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Evidence Lay Statements In his claim for an increased rating in June 2006, the Veteran stated that he is unable to stand or walk due to his back pain. The Veteran submitted a letter dated July 2006 in which he contended that his back condition had deteriorated and has kept him from doing normal activities like standing and walking. He used pain medication continually, and was concerned about all the side effects that these medications caused him, including restlessness, moodiness, insomnia, yawning, abdominal cramps, diarrhea, and goose bumps. He also stated that he had emergency surgery in March 2006 for one of his herniated discs, but not long after surgery, he started experiencing symptoms that were similar to those before surgery. He stated he needed a special ergonomic chair for work, and was unable to walk for longer than a quarter mile without the need to sit due to intense pain from his lower back all the way down to the back of his leg. In addition, he stated that if he is sitting for prolonged periods, he experiences lower back pains which cause moodiness, restlessness and insomnia. A statement from the Veteran's work supervisor, C.H., dated July 2006, stated that as soon as the Veteran began work in August 2005 it became immediately clear that the Veteran had a serious back issue that included back pain. He observed the Veteran walk with a limp from time to time, and could not remain seated for long periods of time. He also stated that he shared an office space with the Veteran, so he was able to observe him on a daily basis. Additionally he noted that the Veteran's back has caused him to miss work days, and that he continues to observe him suffering from back pain. In his notice of disagreement (NOD) dated December 2006, the Veteran contended that continued 10 percent rating failed to consider the impact on his daily life, as well as the pain resulting from normal activities such as sitting, standing, and walking, and how it affects his ability to work. Additionally, in November 2007, the Veteran testified at a hearing before a Decision Review Officer at the RO. The Veteran stated that in March 2006, after being taken to the hospital, he underwent surgery to remove a herniated disc. After the surgery, he was advised by his doctors not to do things like run or exercise. The Veteran stated that while he did walk on the treadmill, he has gained weight because he could not exercise like he used to. The Veteran then stated that he started to get a herniated disc again, and went to the doctor, who advised against having another surgery again so soon. He instead got steroids to help with the inflammation. He also said that when he is at work it is difficult because he sits for a long period of time, and has to take hydrocodone to help relieve the pain. On the weekends, the Veteran stated that he can barely get up and has problems sleeping through the night. With regard to his August 2006 VA examination, the Veteran stated that he had an issue with the fact that the examination was based on range of motion but not his continuous pain and consequences of how it affected his walking, his job, and sharing time with his family. He also stated that he didn't like taking medication. After the March 2006 surgery he was advised to rest for three months, but didn't want to so he went back to work earlier. He has not been prescribed bed rest since then. The Veteran stated that he felt a higher evaluation was warranted because of his increased pain and its effects on his daily life. He also stated that he didn't go to the doctor in 2007 because all he wanted was medication to help with the pain. The Veteran also submitted a statement dated April 2011 in which he stated that his pain can be so intense on some days that it prevents him from standing or walking. His condition required the continued use of numerous forms of pain medication. The Veteran also stated that the high cost of medications and treatment caused him to avoid going to the doctor, until March 2006 when he underwent emergency surgery for one of his herniated discs. However, after the surgery, he began to again experience symptoms of pain. He required the use of ergonomic chairs for work, but even with those chairs he still experienced intense pain after sitting for a long period of time, which his work required him to do. In early 2008, the pain was so unbearable that the Veteran was unable to walk a block or stand for a minute without the need to sit down. He stated that he went to the VA hospital and was told that they could not do an MRI due to a limited budget, so he went to a private hospital and had an MRI done, along with injections to relieve the pain. The Veteran also stated that he began developing knee problems as well. He stated that his quality of life had been negatively affected due to lack of mobility, high level of pain, stress, and the high cost of medical care. Medical Evidence Private treatment records from Dr. L. from December 29, 2005 describe the Veteran with very painful sciatica in the left hip, left leg to ankle. It was also noted that the Veteran has had symptoms for about 6 months, that it had been getting better at times, and lately has been more persistent. The Veteran also had pain in his hip left greater than right, buttocks, and thighs and to his foot at times. He was referred for physical therapy. The Veteran also could not exercise and the pain interfered with his daily activities. Private treatment records from Lawrence and Memorial Hospital dated January 2006 to March 2006 show that the Veteran underwent physical therapy for his lower back pain. In his initial evaluation dated January 2006, the Veteran stated that his lower back pain with pain down his right leg began around August 2004, and that lower back pain with pain down his left leg began in September 2005. An examination noted straight leg raising was to 82 degrees in the right and to 72 degrees in the left. The Veteran could not do terminal knee extension in a sitting position. The Veteran consistently reported pain in his back and left leg, in February 2006 he was noted to have gone to the ER regarding his pain, and in March 2006, he was noted to have bad pain and was going to see an orthopedic doctor. A few days later, the records note that the Veteran had underwent an MRI and told his therapist that surgery was probable. The March 2006 MRI showed a small right paracentral herniation at L4-5 which was unchanged, and a large left-sided herniation at L5-S1 which was slightly more prominent than on his previous examination. Treatment records from Lawrence and Memorial Hospital show that in March 2006, the Veteran was admitted for a L5-S1 lumbar diskectomy. Ten days later, Dr. M. from Shaws Cove Orthopedics noted that the Veteran's leg pain had essentially resolved, and was doing very well. The Veteran's only complaint was constipation. The Veteran was seen again in June 2006, where it was noted that he finally returned to exercise including running until about two weeks ago. The Veteran began to notice left sided low back pain, buttock and leg pain. The leg pain worsened as activities progressed, causing him to limp. X-rays showed no evidence of spondylolisthesis, and mild L5-S1 disc space narrowing. Dr. M. suggested the Veteran attend physical therapy. In July 2006, the Veteran was seen again for a follow-up and was feeling much better. Dr. M. stated that the Veteran could increase activities as tolerated, and noted that the Veteran was swimming for exercise. Subsequent visits to Dr. M. showed the Veteran with some continued leg pain, and following his MRI in June 2008, the Veteran was referred to the pain clinic for a trial of epidural steroids. The Veteran underwent a VA examination in August 2006. The Veteran described his pain as getting worse with left radicular symptoms, had surgery in March 2006, spent 2-3 weeks out of work convalescing. The Veteran also stated that he went back to work early and had pain which required oral steroids. He stated that he left his job in July 2006 for various reasons but that sitting at one position at his desk was bothering his back. He reported intermittent low back pain occurring weekly with left sided intermittent radiation of pain only, no numbness, tingling, bowel or bladder problems. No periods of flare-ups were reported, and the Veteran did not require the use of walking and assistive devices. The examiner determined that the Veteran's back pain had no effect on the Veteran's activities of daily living. The Veteran reported worsening of hemorrhoids due to pain medication. A physical examination revealed range of motion of the thoracolumbar spine to have forward flexion to 90 degrees with pain between 70 to 90 degrees, normal extension to 30 degrees. The spine was painful on motion, but the range of motion was not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use. There was objective evidence of painful motion, with no spasm, weakness, or tenderness. There was also no postural abnormalities, fixed deformities (ankylosis) or abnormality of musculature of back. The only incapacitating episodes were in March 2006 due to recent surgery. A VA primary care clinic record from March 2008 notes the Veteran's lumbar diskectomy in March 2006 and notes the spine as having a small healthy surgical scar of the lumbar spine and unremarkable results. Subsequent VA treatment records from March 2008 to June 2011 show complaints for low back pain, with pain radiating on and off to the right leg. The Veteran also reported daily pain, and that running and straining and lifting would aggravate the pain. The Veteran stated he would continue with pain management with the Lawrence and Memorial Pain Clinic and that he gets intermittent epidural shots if the pain gets worse. Records from the Charter Oak Walk-In Medical Center from April 2008 show that the Veteran was seen for lower back pain, and pain down his left leg. The Veteran was noted to have diminished deep tendon reflexes in his back. He was diagnosed with lumbosacral sprain with sciatica superimposed upon previous disc surgery. Private medical records from Lawrence and Memorial Hospital show that an MRI was done in June 2008. The findings showed multilevel degenerative disc disease with post-surgical changes on the right at L5-S1. It was noted that non-enhancing soft tissue suggestive of residual or recurrent left subarticular herniation was present and deformed the left ventral thecal sac. Following the MRI, a follow-up appointment revealed that there was a small recurrent disk herniation and moderate foraminal stenosis, which the doctor stated appeared to be responsible for his leg pain. Records from the Lawrence and Memorial Pain Clinic from July 2008 to August 2008 show that the Veteran exhibited good range of motion of the lumbar spine with both flexion and hyperextension. The Veteran denied any significant weakness or numbness but had a lot of pain in his left foot. He denied any urinary incontinence or bowel dysfunction. He stated that his pain was constant and not relieved by over the counter medications. The Veteran was given a lumbar epidural steroid injections in July 2008 and twice in August 2008. Following the Board's remand in March 2011, additional private treatment records were obtained. In September 2008, the Veteran was seen at the Lawrence and Memorial Pain Clinic with complaints of low back pain with radicular symptoms toward the left lower extremity with numbness and tingling. After his third steroid injection, the Veteran hurt his left knee and was unable to differentiate if his pain symptoms were coming from the old problem or from a new injury. The Veteran denied any urinary incontinence and bowel dysfunction. The Veteran was seen at the Charter Oak Walk-In Medical Clinic in November 2009, complaining of back and right knee pain. He was noted to have difficulty going from a seated to standing position. He was diagnosed with persistent lumbosacral sprain with sciatica. The Veteran underwent a VA spine and peripheral nerves examination in August 2011. With regard to the spine, the examiner indicated that the claims file was reviewed. The Veteran did not report any history of spine trauma, spine neoplasm or spine condition flare-ups. He did report a history of surgical repair of a herniated disc L5-S1. Also noted was a history of decreased motion, stiffness, and lumbar spine pain described as dull and achy, but sharp at times. The pain was also described as severe and constant, occurring daily with radiation. No incapacitating episodes of spine disease were noted. The Veteran used a brace and is able to walk more than 1/4 mile but less than a mile. Inspection of the spine revealed a normal posture and head position with symmetry, and a normal gait. Physical examination revealed spasm, guarding, pain with motion, and tenderness. Flexion was to 90 degrees, extension to 20 degrees, and objective evidence of pain on active range of motion. With repetitive motion, there was objective evidence of pain present, but no additional limitations after three repetitions of range of motion. The Veteran is currently employed full-time, and states that he lost work for 3 weeks within the past 12 months, for low back pain and doctor visits for treatment. The diagnosis was intervertebral disc syndrome of the lumbar spine, with decreased range of motion. The examiner noted that the effect on the Veteran's occupational activities were decreased concentration, decreased mobility, problems with lifting and carrying, difficulty reaching, and pain. With regard to usual daily activities, the examiner noted that the IVDS prevented the Veteran from playing sports; caused severe problems with chores and exercise; moderate problems with shopping, recreation, traveling, and driving; and mild problems with feeding, bathing and dressing. The peripheral nerves examination indicated that the Veteran's diagnosis of bilateral lower extremity radiculopathy with pain and numbness had its onset in 1989, and the Veteran reported that it had gotten progressively worse since then. A physical examination revealed findings of decreased vibration, decreased pain on pinprick, decreased sensation to light touch and dysesthesias of the S1 dermatome in the right and left lower extremities. There was normal muscle tone, no atrophy, abnormal gait, imbalance or tremor, fasciculations, and affect on function of any joint. The Veteran was employed full-time as an accountant, and had lost work for three weeks within the past year due to low back pain and doctor visits for treatment. The examiner noted that his condition limited his ability to perform at an optimum level, and listed the Veteran as having the same problems with daily activities that he stated in the spine examination report. III. Evaluation In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2013). Low back The Veteran's IVDS is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, the disability is to be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method resulting in the higher evaluation is to be used. Back disabilities may be evaluated under either of two general rating formulas. One applies to IVDS, and is based upon the duration of incapacitating episodes. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. The record fails to reflect, and the Veteran does not allege, that he has been prescribed bed rest to treat his IVDS at any time during the appeal. Therefore, the Board concludes that it would be more advantageous to the Veteran to evaluate his IVDS pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, applicable under Code 5243, the disability is evaluated 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 is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a (2013). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2) (2013). When rating under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2013). In evaluating any disability on the basis of limitation of motion, VA must also consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, in the instant appeal, evidence from one year prior to the Veteran's submission of his claim received on June 20, 2006 will be considered. Prior to March 10, 2006 Based on the evidence discussed above, the Board finds that a rating in excess of 10 percent is not warranted for the period prior to March 10, 2006. The first evidence of worsening of the Veteran's back occurred in September 2005, according to the Veteran's statement in his initial physical therapy evaluation in January 2006. While it is unclear as to the exact date in which the Veteran's back disability increased, taking into account the Veteran's statement and resolving all doubt in his favor, the Board finds that it was on September 1, 2005. However, the Veteran's symptoms did not rise to a level warranting an evaluation in excess of 10 percent. There are no measurements of flexion, extension, lateral flexion or rotation, to apply the criteria for an increased disability rating. While the Veteran complained of pain, and described the effect on his functional capacity, such as missing days of work, this loss is not quantified in a way that would permit application of the Schedule. Given the absence of evidence needed to show worsening of a measurable degree, the assignment of a rating in excess of 10 percent prior to March 10, 2006 is not warranted. The Board has also considered whether any separate evaluations are applicable for additional disability or neurological disorders associated with the service-connected IVDS. With the exception of radiculopathy of the lower extremities that is discussed further below, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability to warrant a separate compensable rating. Since May 1, 2006 The Board also finds that a rating in excess of 10 percent is not warranted for the Veteran's IVDS since May 1, 2006. The Board notes that the greatest limitation of motion during this time was flexion to 90 degrees. Both the August 2006 and August 2011 VA examiners did note that there was pain on active range of motion, and the August 2006 examination report noted symptoms of pain and weakness between 70-90 degrees. The Board observes that flexion must be limited to 60 degrees or less in order to warrant a 20 percent rating. However, such limitation is not found, even considering the additional functional limitation caused by factors such as pain and weakness. The Board further notes that at no time is the Veteran's combined range of motion limited to 120 degrees or less. The evidence also expressly notes no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. It is necessary to consider, along with the schedular criteria, functional loss due to flare ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206- 07. The evidence includes the Veteran's complaints of low back pain and limited motion. The Veteran credibly reports that he suffers from some functional limitation due to pain on motion. The August 2006 and August 2011 VA examination reports include the Veteran's reports of pain with range of motion testing. However, even accounting for any limitations of his lumbar spine range of motion due to pain, the Veteran's range of motion still exceeds that which is required for a 20 percent disability rating. Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. The Veteran states that he suffers from days in which he cannot stand or walk, but he does manage the pain with medication as well as epidural shots. Also, the Veteran continues to be employed as an accountant, albeit having to use employ an ergonomic chair to sit in while he works. In light of the above, the Board finds that a rating in excess of 10 percent is not warranted at any time under the General Rating Formula for Diseases and Injuries of the Spine. Left and right lower extremity radiculopathy In this case, as the Veteran's service-connected disabilities are evaluated under the same diagnostic code and as the pertinent medical evidence of record discusses both left and right lower extremities at the same time, the Board will address both issues together. The Veteran's radiculopathy of the left and right lower extremity were assigned a 10 percent schedular disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8620, effective June 20, 2006. Diagnostic Code 8620, neuritis of the sciatic nerve, which is evaluated as incomplete paralysis, is assigned a 10 percent rating for mild incomplete paralysis; a 20 percent disability rating for moderate incomplete paralysis; a 40 percent disability rating for moderately severe incomplete paralysis; a 60 percent disability rating for severe incomplete paralysis with marked muscular atrophy; and an 80 percent disability rating for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 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. 38 C.F.R. § 4.120. 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, 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. 38 C.F.R. § 4.124a. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 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 these organic changes will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As noted above, 38 C.F.R. § 3.400(o) (2) allows for the retroactive award of benefits from the earliest date as of which an increase in disability is factually ascertainable if the claim for an increased evaluation is received within one year from such date. Therefore Board must consider the period prior to June 20, 2006, the date of receipt of the claim for increase. According to the claims file, a private treatment record dated December 29, 2005 shows a finding of sciatica in the left hip and left leg to ankle. As this record shows an increase in disability for the left lower extremity radiculopathy within one year prior to the date of receipt of the claim for increase, a retroactive award of benefits from December 29, 2005 will be considered. 38 C.F.R. § 3.400(o)(2). However, as mentioned above, the period from March 10, 2006 to May 1, 2006 is not on appeal, and will not be considered. With regard to right lower extremity radiculopathy, the above discussed evidence indicates that the first evidence of worsening was in August 2004, according to the Veteran's statement during his initial physical therapy evaluation in January 2006. As this date falls beyond the one year period prior to the Veteran's claim for an increased rating, only evidence from the date of receipt of the claim for increase, June 20, 2006, will be considered. 38 C.F.R. § 3.400(o)(2). Based on the competent medical evidence discussed above, it establishes that the Veteran's left lower extremity radiculopathy most nearly approximates a 20 percent evaluation during the entire period on appeal from December 29, 2005. The evidence also establishes that the Veteran's right lower extremity radiculopathy most nearly approximates a 20 percent evaluation from June 20, 2006. The Veteran's disability was productive of pain, numbness, some loss of sensation, and decreased vibration as well as limitations on daily activities throughout the relevant claims period. The Board finds these symptoms are contemplated by moderate incomplete paralysis of the sciatic nerve under Diagnostic Code 8620. Strength and reflexes of the left lower extremity were normal and the Veteran clearly did not manifest symptoms of moderately severe incomplete paralysis. The Board acknowledges that the Veteran is competent to report things he experiences or observes through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Board has considered the Veteran's lay statements regarding the symptoms of his disability and find they are consistent with the medical evidence during the applicable claims period and of a 20 percent rating. The Veteran stated that he experiences constant pain and pain radiating down his left leg along with loss of feeling of the foot. He also has stated that he experiences pain radiating down to his right thigh and right leg. The Veteran has also stated that that the pain limits his ability to walk and exercise, and that he requires epidural shots to relieve the pain. The Board finds the Veteran's statements to be credible in that they have remained consistent throughout the appeal period, and are corroborated by the medical evidence of record. Extraschedular Consideration Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria are sufficient and adequate in this case. They account for the Veteran's subjectively reported and objectively identified back symptoms, particularly when the functional impact of the DeLuca factors is considered. They also account for the Veteran's subjectively reported and objectively identified symptoms of radiculopathy in his left and right lower extremities. Pain, loss of motion, and instability, as well as endurance, are all weighed in evaluations under the Schedule, and the Veteran did not endorse any symptoms that are outside of the criteria applied. Accordingly, any further discussion on extraschedular entitlement is unnecessary. ORDER An evaluation in excess of 10 percent for intervertebral disc syndrome (IVDS) prior to March 10, 2006 is denied. An evaluation in excess of 10 percent for IVDS since May 1, 2006 is denied. An evaluation of 20 percent, but not greater, for left lower extremity radiculopathy is granted for the appeal period from December 29, 2005. An evaluation of 20 percent, but not greater, for right lower extremity radiculopathy is granted from June 20, 2006. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs