Citation Nr: 1341440 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-12 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating greater than 10 percent for L4-L5 and L5-S1 degenerative disc disease (DDD) of the lumbar spine prior to December 12, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from December 1982 to April 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction subsequently was transferred to the Waco, Texas RO. In February 2013, the Board remanded the Veteran's claim for readjudication, finding that the Veteran had filed a substantive appeal with respect to an increased rating for the low back disability for the period prior to December 12, 2008. By way of background and as discussed in the Board's February 2013 remand, service connection for the Veteran's low back disability initially was granted in the July 2007 rating decision and a 10 percent rating assigned. Thereafter, a February 2009 rating decision granted the Veteran an increased rating to 40 percent for her DDD of the lumbar spine, effective from December 12, 2008, the date of the VA examination showing symptoms approximating those for a 40 percent rating. A contemporaneous February 2009 statement of the case (SOC) denied a rating greater than 40 percent for the low back disability. In April 2009, the Veteran submitted a timely substantive appeal, wherein she contended that the 40 percent rating should be effective from June 1, 2007. The Veteran did not dispute the rating assigned for the period from December 12, 2008. The RO addressed the issue of entitlement to an increased rating prior to December 12, 2008 in an October 2009 SOC; however, as the Board concluded in February 2013 that the issue already had been substantively appealed to the Board, the SOC was not the proper method of adjudicating the matter. The Board has not only reviewed the Veteran's physical claims file, but also her Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. The issue of entitlement to separate rating(s) for bilateral lower extremity radiculopathy for some period after December 11, 2008, 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 it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From May 1, 2007 through December 11, 2008, the Veteran's lumbar spine disability was manifested by objective chronic low back pain, tenderness, and DDD at L4-L5 and L5-S1, but not by limitation of forward flexion of the thoracolumbar spine to 60 degrees or less, an abnormal gait, ankylosis, or incapacitating episodes of at least 2 weeks duration requiring both bedrest and treatment by a physician. 2. Lay evidence indicates and clinical evidence confirms that from May 1, 2007 through December 11, 2008, the Veteran had right lower extremity sciatic pain, but without sensory loss, decreased muscle strength, or reflex loss in the right lower extremity. CONCLUSIONS OF LAW 1. From May 1, 2007 through December 11, 2008, the criteria for a disability rating greater than 10 percent for DDD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242 (2013). 2. The criteria for a separate disability rating of 10 percent under DC 8520, but no more, for right lower extremity sciatic pain (diagnosed as sciatica or radiculopathy), have been met from May 1, 2007 through December 11, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 the evidence submitted by or on behalf of the Veteran. 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 analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In this case, the increased rating claim is a "downstream" issue in that it arose from the initial grant of service connection. Prior to the rating decision granting service connection for the lumbar spine disability, the RO issued a notice letter in November 2006. In addition, after the Veteran's disagreement with the assigned 10 percent rating the RO sent an additional notice letter July 2008 that fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The letters informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of her claims. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for her to prevail on her claim and she is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and post-service TRICARE treatment records are in the file. Furthermore, the Veteran does not assert that there is additional evidence not of record that would help her claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in December 2006 and December 2008. The VA examination reports are thorough and supported by outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. Specifically, the examinations provide sufficient information to assess the current severity of the Veteran's low back disability. Based on the examinations and the fact there is no bright line rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the April 2013 supplemental statement of the case (SSOC) readjudicating the Veteran's claim, the Board finds that there has been substantial compliance with its past remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. 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 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. As discussed above, the sole issue before the Board is entitlement to an increased rating greater than 10 percent for the Veteran's low back disability for the period prior to December 12, 2008 (i.e. from May 1, 2007 through December 11, 2008). The Veteran contends that this rating does not accurately reflect the severity of her condition for that time period. Essentially, the Veteran contends that her condition did not change from the time of separation from service until December 12, 2008, and, as such, her rating should be the same for the entire time period. The Veteran's 10 percent rating during this time period is applied under the provisions of DC 5242 for degenerative arthritis of the spine. See 38 C.F.R. § 4.71a, DC 5242 (2013). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2013). Notes appended to the rating formula for diseases and injuries of the spine specify that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, 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 generally recognized by VA. Id., Note (3). Further, the term "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"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). 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 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. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Spine conditions rated under DC 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with 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 was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. "Incapacitating episodes" was defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate diagnostic codes if it would result in a higher combined evaluation for the disability. The Veteran's service treatment records document treatment for a herniated lumbar disc at L5-S1 and bulging disc at L4-L5, as well as radiculopathy into the bilateral lower extremities. The Veteran filed her claim for entitlement to service connection for a low back disability in November 2006, prior to her separation from service. She was afforded a VA examination in December 2006. The examiner noted review of the medical records. The Veteran reported developing low back pain in approximately 2000 after doing some heavy lifting. She currently experienced low back pain that was rated as 8 out of 10 two to three times per week with normal daily activity, which would last for approximately one day. The Veteran was treating the problem with NSAIDs. In addition, the Veteran reported symptoms of left leg radiculopathy that did not affect her ability to walk or required the use of assistive devices. She remained able to perform activities of daily living. The Veteran was restricted from lifting more than 20 pounds, from running, from jarring activities, from standing for more than 15 minutes, and from sitting for more than one hour. On examination, the Veteran's posture and gait were normal. Muscle strength was equal bilaterally, but there was tenderness on palpation of the low back. Straight leg raises caused radiating pain down the posterior left lower extremity. Range of motion testing showed forward flexion from 0 to 90 degrees, with pain that was rated as 6 out of 10 throughout the arc of motion; extension was to 30 degrees, with 3 out of 10 pain throughout the arc of motion; bilateral lateral flexion was to 35 degrees, with 3 out of 10 pain at the endpoint of motion; and bilateral lateral rotation to 30 degrees, with pain of 5 out of 10 at the endpoint of motion that radiated into the left leg. There also was radiating pain down the left lower extremity with flexion at 90 degrees. There was no further decrease in range of motion or increased pain or weakness on repetitive motion. Reflexes and sensation were normal on examination. The diagnoses included DDD of the lumbar spine. After service, in August 2007, the Veteran reported waking up that day with low back pain that made it difficult to stand and that was radiating into the right lower extremity. On examination, the back was tender to palpation, with muscle spasms bilaterally. Despite the Veteran's reports of radiating leg pain, the treatment provider stated that there were no radicular symptoms or loss of bladder or bowel control. The assessment was lumbago. The treatment professional also provided the Veteran with an individual sick slip restricting her to quarters for 24 hours for the back pain. In November 2007, the Veteran complained of low back pain radiating into the posterior right lower extremity. Medication had provided little to no relief. The assessment was radiculopathy. An April 2008 TRICARE record noted a history of lumbago and radiculopathy. A June 2008 TRICARE record included reports of low back pain of 7 out of 10 intensity. The pain was more concentrated in the right side of the back and radiated down the right lower extremity to the heel. The Veteran described difficulty standing upright or bending over for the previous 3 days. Any movement provoked pain and the Veteran's pain medication was not as effective as it once was. On examination, straight leg raises caused shooting sensation down the right side, with concentration of the pain in the right glute and continuing down the leg. Gait was normal and muscle strength was equal bilaterally. The Veteran had normal reflexes and sensation and was able to stand on her toes independently. There was no evidence of bladder or bowel problems, weakness, or significant paresthesias. The assessment was sciatica and the treatment provider prescribed rest, stretching, ice, NSAID, Flexeril, and physical therapy. On December 12, 2008, the Veteran was afforded another VA examination for her back disability. The examiner noted review of the claims file and medical records. The Veteran reported constant pain in the low back on both sides, radiating into the left leg to the heel and into the right leg behind the knee. She had difficulty bending, stooping, and with prolonged standing or sitting. The Veteran's response to pain medication was fair. At that time, she reported urinary frequency every 2 to 3 hours and nighttime voiding 3 times per night. She denied bowel or bladder incontinence, but did describe leg or foot weakness. In addition, she reported a history of fatigue, decreased motion, stiffness, weakness, and spasm. The Veteran denied flare-ups of pain or incapacitating episodes. She was able to walk a quarter mile. On examination, posture, spinal curvatures, and gait were normal. There was no objective evidence of spasm, atrophy, guarding, weakness, or pain on motion, but there was tenderness to palpation. Muscle strength was normal bilaterally, other than slight weakness of 4 out of 5 on knee extension and ankle dorsiflexion bilaterally. Muscle tone was normal, without evidence of atrophy. Sensation and reflexes were intact and normal. Range of motion testing showed forward flexion to 20 degrees, extension to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 15 degrees. There was objective evidence of pain on motion. Straight leg testing was positive on the right side. The examiner diagnosed DDD, lumbar spine, L4-L5 and L5-S1, with herniated nucleus pulposus (HNP). Under DC 5242, from May 1, 2007 through December 11, 2008, the Veteran is not entitled to a rating greater than 10 percent. The Veteran's limitation of motion does not warrant a rating greater than 10 percent because flexion was not limited to less than 60 degrees nor was there muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Indeed, the Veteran's observed range of motion was never observed to be less than 90 degrees of forward flexion during the appellate time period. As discussed in greater detail below, the Veteran's range of motion was noncompensable under DC 5242 and the RO assigned the 10 percent rating in the July 2007 rating decision based on the provisions for painful motion and greater functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). In reaching the conclusion that a rating greater than 10 percent is not warranted under DC 5242 for the period from May 1, 2007 through December 11, 2008, the Board has considered the findings of decreased range of motion during the December 12, 2008 VA examination that warranted a 40 percent disability rating from that date. As outlined above and discussed in greater detail below, there is no objective evidence prior to December 12, 2008 that would provide a basis for a disability rating greater than 10 percent based on decreased motion of the thoracolumbar spine. The Board has considered the Veteran's statements that her condition did not change from the time of her separation from service to the December 12, 2008 VA examination and, as such, the findings of that examination should be applied retroactively to the entire appellate time period. Such a conclusion, however, would be contrary to the objective medical evidence of record for the appellate time period on appeal. Although the Board has considered the Veteran's contention that the December 2006 VA examiner was cursory in his examination and did not allow her to fully answer his questions, the evidence clearly demonstrates that objective range of motion testing was accomplished and reported, which detailed full range of motion with pain throughout that range of motion. If certain symptoms were present at the time of the examination that were not brought out due to the cursory nature of the examination, the Board finds it reasonable to conclude that the Veteran would have reported such symptoms during her multiple treatment visits for her low back symptoms in the subsequent months during the appellate time period. The medical records during the appellate time period, however, fully support the findings made by the December 2006 VA examiner. For example, the August 2007 and June 2008 treatment records document difficulty bending and/or straightening the spine for a period of 1 and 3 days respectively. If the Veteran were having great difficulty bending and/or straightening her back on an ongoing basis, then it would be reasonable to conclude that she would have so reported at those times. Instead, she reported acute attacks of back pain making such movements difficult that were of recent onset. Finally, the Board finds it extremely significant that during a subsequent October 2009 VA examination, the Veteran demonstrated range of motion of the thoracolumbar spine from 0 to 80 degrees of forward flexion and 0 to 20 degrees of extension, with at most moderate discomfort. Such ranges of motion would warrant a noncompensable rating under DC 5242 and are consistent with the findings of the December 2006 VA examiner. In light of the foregoing and as there is no clear indication of a date of onset for the Veteran's decreased thoracolumbar motion found in the December 12, 2008 VA examination, the Board concludes that a rating greater than 10 percent is not warranted under DC 5242 for the period from May 1, 2007 through December 11, 2008, based on the December 12, 2008 VA examination report or any other subsequent medical record or lay statement. Similarly, from May 1, 2007 through December 11, 2008, the Veteran is not entitled to a greater rating under any other DC. Although the Veteran did carry a diagnosis of intervertebral disc syndrome (specifically DDD) during this time period, there is no evidence of incapacitating episodes requiring prescribed bed rest by a physician for a period of more than 2 weeks during any 12 month period. As discussed above, the Veteran was provided a sick slip in August 2007 that prescribed confinement to quarters. That said, the incident that precipitated the sick slip had its onset that same day (i.e. "Lower Back Pain this morning was hard to stand up and pain shooting down her right leg to thigh") and the slip did not prescribe 2 weeks of bed rest. Moreover, the Veteran does not claim that she was incapacitated for a 2 week period during this time frame. Indeed, as noted above, the Veteran contends that her condition did not change between her separation from service and the December 12, 2008 VA examination report on which her 40 percent disability rating for the low back from that date was based. As outlined above, that report specifically concluded that the Veteran had no incapacitating episodes requiring prescribed bed rest. As such, a higher rating for the appellate time period under DC 5243 is not warranted. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Arthritis of the spine may be rated under DC 5003, for degenerative, hypertrophic, or osteo-arthritis. See 38 C.F.R. § 4.71a, DC 5003 (2013). DC 5003 is used where there is evidence of arthritis and some limitation of motion, but not enough limitation of motion to be compensable under the appropriate DC. As discussed above, the Veteran's disability rating under DC 5242, both prior and subsequent to December 12, 2008, has been based in part on limitation of motion due to pain and a separate rating under DC 5003 would be for the same symptomatology. As separate ratings may not be assigned for the same symptomatology, a separate 10 percent rating under DC 5003 for the Veteran's limitation of motion based on pain is not warranted in this case for the period on appeal. Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. In this regard, the Board notes that disability ratings for diseases of the peripheral nerves under DC 8520 are based on relative loss of function of the involved extremity with attention to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120 (2013). An 80 percent rating is assignable for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent rating may be assigned for incomplete paralysis of the sciatic nerve which is severe, with marked muscular atrophy. A 40 percent rating is assignable when moderately severe. A 20 percent rating may be assigned when moderate. A 10 percent rating may be assigned when mild. 38 C.F.R. § 4.124a, DC 8520 (2013). The Board observes that the words "mild," "moderate" and "severe" as used in the various DCs 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 (2013). The Board notes that for the period from May 1, 2007 through December 11, 2008, the Veteran reported right lower extremity problems stemming from her back, specifically radiating pain. As discussed above, these reports of pain radiating down the right lower extremity were consistent throughout the appellate time period and were supported by medical diagnoses of sciatica and radiculopathy based on those reports. Based on the foregoing evidence, the Board concludes that the Veteran warrants a separate 10 percent rating for her neurological symptoms affecting her right lower extremity under DC 8520 for the entire period from May 1, 2007 through December 11, 2008. Fenderson, 12 Vet. App. at 119. The Board concludes that for the period from May 1, 2007 through December 11, 2008, the Veteran's right lower extremity neuropathy symptoms were no greater than mild, thus a rating greater than 10 percent under DC 8520 is not warranted. Specifically, treatment records during the appellate time period show no objective evidence of loss of sensation, diminished reflexes, objective weakness, or significant paresthesias. As with the Veteran's decreased range of motion as shown in the December 12, 2008 VA examination, during that examination the Veteran also reported weakness in the leg and/or feet. As there is no clear date of onset during the appellate time period, the Board cannot use such a report as a basis for a rating greater than 10 percent under DC 8520 for the current appellate time period. In addition, there was no atrophy, loss of muscle tone, or altered stance, posture, or gait. In short, the medical evidence as a whole supports a disability picture consistent with no more than mild incomplete paralysis of the sciatic nerve for the period from May 1, 2007 through December 11, 2008. The Board also has considered whether a separate rating is warranted under DC 8520 for symptoms involving the left lower extremity. As discussed above, the Veteran had positive straight leg raises on the left side during the December 2006 VA examination and she reported symptoms of left leg radiculopathy. This examination, however, occurred multiple months prior to the Veteran's separation from service and the current appellate time period. During the appellate time period, the Veteran was consistent in her reports regarding radiculopathy symptoms involving only the right lower extremity. The Board recognizes that both the service treatment records and the December 12, 2008 VA examination report include evidence of radiculopathy symptoms involving the left lower extremity. As noted, however, the medical records and lay statements during the appellate time period are consistent in finding only right lower extremity radiculopathy symptoms. As there is no objective evidence of left lower extremity radiculopathy during the appellate time period, the Board concludes that a separate rating is not warranted under DC 8520 for symptoms or disabilities involving the left lower extremity. As noted, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In this case, although the Veteran discussed urinary frequency and nocturia during the December 2008 VA examination, she has consistently denied urinary or fecal incontinence or other bowel or bladder disability. As such, a separate rating for such problems is not warranted. The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that she has consistently complained of pain in the low back. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). As mentioned above, the July 2007 rating decision assigned the Veteran a 10 percent rating for her low back disability based on her painful motion and greater functional loss due to pain, despite not having a decrease in her range of motion sufficient to assign a compensable rating under DC 5242. The Board recognizes that during her December 2006 VA examination the Veteran reported pain throughout the arc of motion during forward flexion and extension of the thoracolumbar spine. However, the Board notes that the Court has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Instead, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance." Id. In this case, despite the Veteran's reports of pain throughout the range of motion, there was no further decrease of range of motion on repetitive testing or increased pain or weakness. During the appellate time period there is no other objective evidence to support the assertion that pain had an effect on the normal working movements of the body such that a rating greater than 10 percent would be warranted. Finally, during the appellate time period the Veteran had no muscle atrophy and retained normal muscle strength. As noted in 38 C.F.R. § 4.40, "A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like." In this case, there is no evidence of any of these symptoms or problems during the appellate time period. As the Veteran's thoracolumbar spine is not a "little used part" of her body, the absence of atrophy or other factors demonstrates that the thoracolumbar spine can and is used regularly by the Veteran. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. Accordingly, the preponderance of the evidence is against assignment of an increased disability rating greater than 10 percent under DC 5242 for the period from May 1, 2007 through December 11, 2008, for the Veteran's service-connected low back disability. Moreover, a separate rating of 10 percent, but no higher, is warranted under DC 8520 for radiculopathy involving the sciatic nerve. The Board has considered whether staged ratings were appropriate in the present case. See Fenderson, 12 Vet. App. at 119. However, for reasons discussed above, the Board finds that there is no competent evidence that the Veteran's service-connected low back disability increased in severity during the appeal period sufficient to warrant a higher evaluation. Therefore, a staged rating is unnecessary. Extraschedular Considerations 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). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected lumbar spine disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's lumbar spine disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In that regard, during the appellate time period the Veteran had flexion of the thoracolumbar spine to 90 degrees, with pain throughout the range of motion. The 10 percent rating assigned under DC 5242 is for that painful motion, but as the Veteran had no objective evidence of weakness, sensory loss, decreased reflexes, atrophy, gait abnormalities, or other problems, such a rating is adequate to compensate the Veteran for her symptoms. In addition, the Veteran's radiating pain into the right lower extremity is compensated for and contemplated by the 10 percent rating awarded herein under DC 8520. Thus, the Veteran's schedular ratings under DCs 5242 and 8520 are adequate to fully compensate her for her low back disability for the period from May 1, 2007 through December 11, 2008. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial rating greater than 10 percent for L4-L5 and L5-S1 DDD of the lumbar spine prior to December 12, 2008, is denied. From May 1, 2007 through December 11, 2008, entitlement to a separate evaluation of 10 percent for a low back disability is granted under DC 8520 for mild, incomplete paralysis of the sciatic nerve, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs