Citation Nr: 1341503 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 08-31 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating in excess of 40 percent for a lumbosacral strain prior to November 4, 2005, and in excess of 50 percent since November 4, 2005. 2. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity prior to November 4, 2005, 3. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right lower extremity from November 4, 2005, to March 23, 2006, and in excess of 40 percent since March 24, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from June 1989 to December 1994. The matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO increased the Veteran's disability rating for a lumbosacral strain from 10 percent to 40 percent, effective December 7, 2004. The RO also granted service connection for radiculopathy of the right lower extremity and assigned a 10 percent disability rating, effective October 22, 2003. Subsequently, the claim was transferred to the RO in Montgomery, Alabama. In an August 2006 rating decision, the RO increased the Veteran's disability rating for a lumbosacral strain from 40 percent to 50 percent, effective November 4, 2005. The RO also increased the Veteran's disability rating for radiculopathy of the right lower extremity from 10 percent to 20 percent, effective November 4, 2005. In an October 2007 rating decision, the RO increased the Veteran's disability rating for radiculopathy of the right lower extremity from 20 percent to 40 percent, effective March 24, 2006. Because less than the maximum available benefits for a schedular rating were awarded, the claims remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the RO granted total disability rating based on individual unemployability (TDIU) in an October 2008 rating decision. The Veteran did not disagree with the effective date assigned. As such, the issue is not before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated May 2008 to June 2013 and an October 2013 Appellate Brief. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. Prior to November 4, 2005, the Veteran's lumbosacral strain was manifested by pain, stiffness, localized tenderness, muscle spasms, and flare-ups, with forward flexion of 30 degrees. 2. Since November 4, 2005, the Veteran's lumbosacral strain has been manifested by pain, stiffness, tenderness, locking up, muscle spasms, flare-ups, an inability to stand straight, and a left leaning posture, with range of motion less than 10 degrees in all directions. 3. Prior to November 4, 2005, the Veteran's radiculopathy of the right lower extremity was manifested by mild sensory deficits including tightness, tingling, burning, and numbness. 4. Since November 4, 2005, the Veteran's radiculopathy of the right lower extremity has been manifested by severe deficits including tightness, tingling, burning, numbness, muscle spasms, pain, muscle weakness, paralysis of the sciatic nerve, flexion of the knee weakened, palpable or visible muscle contraction but no joint movement, and right foot drop. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 40 percent for a lumbosacral strain prior to November 4, 2005, and in excess of 50 percent since November 4, 2005, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). 2. The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity prior to November 4, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 5237-8520 (2013). 3. The criteria for an initial disability rating of 80 percent, but no higher, for radiculopathy of the right lower extremity since November 4, 2005, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 5237-8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the duty to notify the Veteran regarding her increased rating claim for service-connected lumbosacral strain was satisfied by way of a letter dated December 2004. The letter informed the Veteran of what evidence was required to substantiate the claim for an increased rating and of the Veteran's and VA's respective duties for obtaining evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for higher initial rating for radiculopathy of the right lower extremity arises from her disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's statements, post-service VA treatment records, and Social Security Administration (SSA) records have been associated with the claims folder. Additionally, the Veteran has not identified any outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in April 2005, July 2006, June 2007, September 2008, and July 2012. The Board finds that the VA examination reports are adequate for rating purposes because the examiners conducted clinical evaluations, reviewed the Veteran's medical history and lay statements, and described the Veteran's lumbosacral strain and radiculopathy of the right lower extremity in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2013). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed her claim for an increased rating for a lumbosacral strain, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119,126 (1999). In this case, the RO has already assigned staged ratings for the disabilities under consideration. Hence, the Board must consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lumbosacral Strain The Veteran's lumbosacral strain is rated under the diagnostic code for lumbosacral or cervical strain in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). A 10 percent evaluation is warranted 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. Id. A 20 percent evaluation is warranted for 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. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, DC 5235-43, Note (2) (2013). Disorders of the spine may also be rated under DC 5243, Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under this code a 10 percent disability evaluation 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 disability evaluation 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 disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2013). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. Id. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Turning to the evidence of record, VA treatment records dated June 2003 to June 2013; show that the Veteran was treated for chronic back pain. The Veteran was afforded a VA examination in April 2005. The Veteran reported stiffness in the morning and flare-ups of pain on bending, lifting, or walking for more than 15 minutes. The examiner noted that the Veteran had additional functional limitation during flare-ups. The Veteran reported that she was able to perform daily activities, including, feeding, dressing, bathing, and toileting. The Veteran also reported that she was able to walk about 15 minutes every day. The Veteran reported that she avoided bending or carrying heavy objects, and that she was unable to run or weight train because of her back condition. The examiner noted that the Veteran walked with a small limp to favor her right leg. The Veteran's active range of motion was flexion 0 to 30 with pain, extension 0 to 5 with pain and muscle spasms, right and left lateral flexion 0 to 20 with pain, and right and left lateral rotation 0 to 35 with pain. Physical examination of the lower back revealed tenderness at the L5 paraspinal area. There was no effusion, or erythematous changes. There was additional loss of motion due to pain and some muscles spasms, with pain the major factor. Repetitive use showed no additional loss of motion, fatigue, incoordination, or lack of endurance. The examiner also noted that examination of the spine revealed no fixed deformities and in the prior 12 months the Veteran had no episodes of incapacitation. In July 2006, the Veteran submitted a letter from a friend regarding the current condition of the Veteran's back. The friend reported that she helps the Veteran with household chores such as cleaning and cooking. She also reported that the Veteran is often in great pain with limited movement or confined to her bed. The friend reported that the medicine the Veteran takes leaves her tired and drowsy and unable to take care of herself. She reported that she prepares heating pads or ice packs for the Veteran's pain. She also reported that she drives the Veteran to her VA appointments, which leaves the Veteran tired and in pain so she immediately goes to bed. The Veteran was afforded another VA examination in July 2006. The Veteran reported that she has constant pain and discomfort in her back, even when sitting still or lying down. She reported that her pain increases with walking, standing, sitting, or lying down on her back or right side. She also reported that she has stiffness in her back. The Veteran also reported that she is limited in performing daily activities. She reported that she needs help getting in the tub but that she can take a shower. She also reported that she does not sleep well at night and has to lie down quite a bit during the day. She also reported that she walks about a quarter of a mile outside of the house. The examiner noted that the Veteran's posture was bent to the left side, she had considerable difficulty standing up from a chair, and she needed assistance undressing. On physical examination, the examiner noted tenderness of the entire length of the thoracic and lumbar spine. There were moderate spasms of the paraspinal muscles. On range of motion testing, the Veteran complained of severe pain with any movement and the examiner noted that lumbar spine movement was restricted to less than 10 degrees in any direction. The examiner noted that the Veteran was unable to complete repetitive motion testing. The examiner also noted severe restrictions of range of motion. The Veteran was afforded another VA examination in September 2008. The Veteran reported constant, daily pain of her entire back, with little relief from pain medication. She reported that she has stiffness in her back and her back locks up. The Veteran reported that she cannot walk more than 50 feet. She reported that she needs help dressing and getting in and out of the bath tub. She also reported that she has trouble getting off the toilet. On physical examination, the examiner noted that the Veteran could not stand straight and could not stand long enough to complete range of motion testing. The examiner also noted that everywhere he touched on the Veteran's back she complained of pain. X-rays revealed mild degenerative spondylosis. The Veteran was afforded another VA examination in July 2012. The Veteran reported flare-ups of burning pain, weakness, and jerking of her right leg that occurred twice per week and lasted two to three minutes. She reported that she has to go to bed when her condition flares. The Veteran's active range of motion was forward flexion to 15 with pain at 5, extension to 10 with pain at 5, right lateral flexion to 20 with pain at 5, left lateral flexion to 15 with pain at 5, right lateral rotation to 10 with pain, and left lateral rotation to 15 with pain at 5. The Veteran was unable to perform repetitive motion testing because of increased pain. The examiner noted that the Veteran had additional functional loss and limitation with less movement than normal, weakened movement, excess fatigability, and pain on movement. The Veteran also had tenderness, guarding, and muscle spasms severe enough to result in an abnormal gait and an abnormal spinal contour. The examiner also noted that the Veteran did not have IVDS. Based on the evidence above, the Board finds that a rating in excess of 40 percent for the period prior to November 4, 2005, is not warranted. As stated above, in order to warrant a higher rating there must be evidence of unfavorable ankylosis of the thoracolumbar spine or evidence of unfavorable ankylosis of the entire spine. While the Veteran's lumbosacral strain was manifested by pain, stiffness, localized tenderness, muscle spasms, and flare-ups, with forward flexion of 30 degrees during this time, there is no evidence of ankylosis of any kind. As such a higher rating for this period is not warranted. When applying the DeLuca criteria to the Veteran's claim, the preponderance of the evidence of record still demonstrates that she is not entitled to a disability evaluation in excess of 40 percent for this period. The Board acknowledges that at the April 2005 VA examination, the Veteran reported that she had flare-ups of pain on bending, lifting, or walking for more than 15 minutes. The Board also acknowledges that the examiner noted that the Veteran had additional functional limitation during flare-ups and that there was additional loss of motion due to pain and some muscles spasms, with pain the major factor. However, the Board finds that the currently assigned rating contemplates such limitation. Again, a 40 percent rating is assigned for favorable ankylosis of the entire thoracolumbar. Ankylosis is defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Brooks v. Shinseki, No. 10-3667, 2012 WL 2340109, *1 n.1 (Vet. App. June 20, 2012) (non-precedential decision) (quoting Dorland's Illustrated Medical Dictionary 94 (32d ed.2012) (emphasis added). The Veteran has motion in her spine but during flare-ups there is additional functional limitation of motion which can be no more than "immobility" of the spine akin to favorable ankylosis of the spine. Therefore, the Board finds that the Veteran's additional functional limitation during flare-ups is contemplated in a 40 percent rating. The Board has also considered whether a higher disability rating would be warranted for this period based on the Formula for Rating Intervertebral Disc Syndrome. However, at the April 2005 VA examination, the Veteran denied any incapacitating episodes in the prior 12 months and the record does not otherwise show that a physician prescribed bed rest. As such, a higher disability evaluation based on IVDS is not warranted, for this period. The Board also finds that a rating in excess of 50 percent is not warranted since November 4, 2005. The Board notes that during this period there is no evidence of unfavorable ankylosis of the thoracolumbar spine, as required to meet the 50 percent criteria. However, when applying the DeLuca criteria and resolving all reasonable doubt in the Veteran's favor, the Board notes that the Veteran's symptoms during this time include additional functional impairment that may more nearly approximate limitation associated with unfavorable ankylosis of the thoracolumbar spine. The Board points specifically to the Veteran's difficulty with standing straight, left leaning posture, difficulty performing daily activities, and difficulty performing range of motion testing at the July 2006 and September 2008 VA examinations. The Board also points to the Veteran's inability to perform repetitive motion testing at the July 2012 VA examination as evidence of the Veteran's limitation of movement since November 4, 2005. In so finding, the Board also finds that a 100 percent rating is not warranted for this period as there is no evidence of ankylosis of the entire spine. Service connection is not in effect for the cervical spine. The Board also points to the Veteran's ability, although limited, to perform range of motion testing at the July 2012 VA examination. As such, the Board finds that the Veteran's additional functional limitation is not consistent with the limitation associated with unfavorable ankylosis of the entire spine on account of service connected disability. There is also no compensable neurological impairment shown by medical evidence associated with the Veteran's left lower extremity. See April 2005, July 2006, June 2007, and July 2012 VA examination reports. The July 2006 VA examination only showed a decrease in touch and pinprick sensation in the left leg. The September 2008 VA examination showed strength of 4/5. The Veteran is not diagnosed with radiculopathy of the left lower extremity. The foregoing findings are not commensurate with a level of disability associated with mild incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. Therefore, the Veteran is not entitled to a separate compensable rating for the left lower extremity at this time. The Board has also considered whether a higher disability rating would be warranted for this period based on the Formula for Rating Intervertebral Disc Syndrome. There is no medical evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months requiring bed rest prescribed by a physician and treatment by a physician. As such, a higher disability evaluation based on IVDS is not warranted, for this period. The Veteran is competent to report on symptoms and credible in her belief that her back disability warrants a higher rating. Her competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the back impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 40 percent prior to November 4, 2005 and in excess of 50 percent since November 4, 2005, must be denied. Radiculopathy of the Right Lower Extremity The Veteran's radiculopathy of the right lower extremity is rated under 38 C.F.R. § 4.124a, Diagnostic Code 5237-8520, pertaining to paralysis of the sciatic nerve. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2013). A 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent evaluation is warranted for moderately severe incomplete paralysis. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis, which is characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). The words such as 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule. The term 'incomplete paralysis' with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at 'Diseases of the Peripheral Nerves' in 38 C.F.R. § 4.124a (2013). Turning to the evidence of record, VA treatment records dated June 2003 to June 2013 show that the Veteran was treated for low back pain with radiculopathy. The Veteran was afforded a VA examination in April 2005. On physical examination the pin prick test was normal and reflex testing of the patella and Achilles tendon were normal. Motor examination showed no muscle atrophy or weakness. The Lasegue test was positive for the right leg and the examiner noted that the Veteran has tears in her eyes during the test. A VA treatment record dated June 2006 shows that the Veteran reported tingling and burning in both legs, especially on the right. The examiner also noted that the Veteran had limited muscle strength in the right foot with and without resistance. The Veteran was afforded another VA examination in July 2006. The Veteran reported that the pain in the right lower extremity was constant. She reported that her right leg sometimes jerks. She also reported intermittent numbness and tingling on the bottom of the right foot and constant numbness of the right leg and buttocks. The Veteran reported burning and stinging in the right lower extremity and problems moving her right lower extremity due to pain and weakness. The examiner noted that neurological examination was difficult due to the Veteran's pain. He reported that strength could not adequately be determined but it appeared that she had 4/5 on the right and 5/5 on the left. During examination the Veteran complained of severe burning in the right thigh and the back. The examiner also noted that the Veteran was unable to tolerate EMG and Nerve Conduction Velocity (NCV) testing. A June 2007 VA medical opinion shows that the Veteran underwent clinical testing that was unable to be performed at the July 2006 VA examination. EMG and NCV studies showed right L5-S1 lumbar radiculopathy of mild to moderate severity. The Veteran was afforded another VA examination in September 2008. The Veteran reported that her entire right lower extremity hurts all the time. She reported that she has numbness in her right leg and ankle. The examiner noted that the neurological examination was very limited due to the Veteran's pain. Lower right extremity strength was 4/5 and the examiner noted the Veteran had very little movement against gravity. The examiner also noted that everywhere he touched on the lower right extremity, the Veteran complained of pain. The Veteran was afforded another VA examination in July 2012. The examiner noted that the Veteran had constant severe pain and severe intermediate pain in her right lower extremity. The Veteran also had moderate parethesias and/or dysthesias and severe numbness in her right lower extremity. On strength testing, the Veteran's right hip was 1/5, right knee extension was 1/5, ankle plantar flexion was 2/5, ankle dorsiflexion was 1/5, and great toe extension was 1/5. On reflex exam the Veteran's right knee was noted as hyperactive without clonus and her right ankle was noted as normal. The examiner noted that the Veteran was negative for muscle atrophy. The examiner noted that the severity of the Veteran's radiculopathy was severe. Based on the evidence of record, the Board finds that prior to November 4, 2005; a rating in excess of 10 percent is not warranted. As stated, in order to warrant a higher rating there must be evidence of moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis, with marked muscular atrophy, or complete paralysis of the sciatic nerve. During this period, the Veteran's radiculopathy of the lower right extremity was manifest by tightness, tingling, burning, and numbness. Additionally, the April 2005 VA examination revealed that pin prick testing and reflex testing of the patella and Achilles tendon were normal. Furthermore, the April 2005 VA examiner noted that there was no muscle atrophy or weakness. As such a rating higher than 10 percent is not warranted for this period. The Veteran is competent to report on symptoms and credible in her belief that her right leg disability warrants a higher rating. Her competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the right leg impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 10 percent prior to November 4, 2005, must be denied. However, resolving all reasonable doubt in the Veteran's favor, the Board finds that since November 4, 2005, the Veteran's radiculopathy of the right lower extremity more nearly approximates complete paralysis of the sciatic nerve. As noted above, a 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis, which is characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Arguably, the rating criteria for evaluating incomplete paralysis are successive under Diagnostic Code 8520. The same is not necessarily true as between the rating criteria for complete paralysis versus incomplete paralysis under Diagnostic Code 8520. Thus, consideration of 38 C.F.R. § 4.7 is required. In this regard, the Board observes that in addition to continued complaints of tingling, burning, and numbness, the Veteran also reported muscle weakness and pain that reduced the Veteran's movement in her lower right extremity. Furthermore, the June 2006 VA record noted that the Veteran had limited muscle strength in her right foot. At the July 2006 examination the examiner noted that the examination was limited and the Veteran was unable to undergo EMG and NCV testing due to pain. The September 2008 examiner noted the Veteran's lower right extremity strength was 4/5 and the Veteran had very little movement against gravity. Furthermore, at the July 2012 examination, strength testing revealed the Veteran's right hip was 1/5, right knee extension was 1/5, ankle plantar flexion was 2/5, ankle dorsiflexion was 1/5, and great toe extension was 1/5. The Veteran's right lower extremity strength was noted as having either palpable or visual muscle contraction, but no joint movement, or active movement with gravity eliminated. The July 2012 examiner also concluded that the Veteran's radiculopathy was severe. The Board notes that the July 2007 EMG and NCV testing showed that the Veteran's radiculopathy was mild to moderately severe. However, considering the Veteran's consistent complaints of limited movement due to muscle weakness and pain, as well as medical evidence of reduced movement and strength, the Board finds that it is reasonable to assume the Veteran's symptoms more closely approximated the severe criteria throughout this period. Crucially, in a May 2006 treatment note, Dr. J.I. reported that the Veteran had right foot drop with evidence of deterioration or muscle wasting due to the low back disability. VA records show that the Veteran must use a brace for her foot and that she utilizes a cane and wheelchair. The September 2008 VA examination showed the Veteran could not straighten her right knee and kept the right knee at 40 degrees flexion and that she had "very little movement against gravity." In a January 2012 report, Dr. B.T. reported that the Veteran had "paralysis of [the] sciatic nerve." At the July 2012 VA examination, in regard to whether there was active movement possible of muscles below the knee, the Veteran only scored a 1 out of 5 ("palpable or visible muscle contraction, but no joint movement"). The foregoing findings more nearly approximate complete paralysis, characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or lost-the criteria associated with an 80 percent rating. The Board thus finds that since November 4, 2005, an 80 percent evaluation is warranted for the Veteran's radiculopathy of the right lower extremity. Other Considerations An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbosacral strain and radiculopathy of the right lower extremity with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms that are not addressed by the rating schedule. The Veteran has not described any exceptional or unusual features of her lumbosacral strain or radiculopathy of the right lower extremity. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for her service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Entitlement to an increased rating for a lumbosacral strain in excess of 40 percent prior to November 4, 2005 and in excess of 50 percent since November 4, 2005, is denied. Entitlement to an initial rating for radiculopathy of the right lower extremity in excess of 10 percent prior to November 4, 2005, is denied. An 80 percent evaluation for radiculopathy of the right lower extremity is granted from November 4, 2005, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs