Citation Nr: 1341637 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 10-21 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for patellofemoral chondromalacia of the right knee. 2. Entitlement to disability ratings in excess of 20 percent as of March 20, 2008, and in excess of 40 percent as of February 10, 2009, for lumbar spine disability. 3. Entitlement to an initial increased rating for radiculopathy of the right lower extremity evaluated as 10 percent disabling from October 2011, and 40 percent disabling from March 2012. 4. Entitlement to an initial increased rating for radiculopathy of the left lower extremity evaluated as 10 percent disabling from October 2011, and 40 percent disabling from March 2012. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision drafted by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which increased the rating for the Veteran's lumbar spine disability from 10 percent to 20 percent as of March 20, 2008, and continued his 10 percent rating for his right knee disability. In an April 2013 rating decision, the RO increased the rating for the Veteran's lumbar spine disability from 20 percent to 40 percent as of February 10, 2009. Also during the appeal period, the Veteran was awarded a separate evaluation for right and left lower extremity radiculopathy secondary to the lumbar spine disability. Each extremity was evaluated as 10 percent disabling from October 2011, and as 40 percent disabling from March 2012. In October 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In February 2012, the Board remanded this case for further development. The case has returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's right knee disability has been productive of intense pain with extension to 0 degrees and flexion to no less than 50 degrees including on repetition, without clinical evidence of ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. 2. Prior to February 10, 2009, the Veteran's back disability was characterized by forward flexion to 55 degrees, without ankylosis. 3. As of February 10, 2009, the Veteran's back disability is characterized by forward flexion to no less than 10 degrees, without ankylosis. 4. As of October 3, 2011, the Veteran's right lower extremity radiculopathy is characterized by severe radiculopathic numbness in both lower extremities due to sciatic nerve root involvement, but no muscle atrophy. 5. As of October 3, 2011, the Veteran's left lower extremity radiculopathy is characterized by severe radiculopathic numbness in both lower extremities due to sciatic nerve root involvement, but no muscle atrophy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5299-5260 (2013). 2. The criteria for a rating in excess of 20 percent prior to February 10, 2009, for a back disability have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5242-5237 (2013). 3. The criteria for a rating in excess of 40 percent as of February 10, 2009, for a back disability have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5242-5237 (2013). 4. Effective October 3, 2011, the criteria for a rating of 40 percent, but no higher, for right lower extremity radiculopathy associated with herniated nucleus pulposis are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.123, 4.124, 4.124a, DC 8520 (2013). 5. Effective October 3, 2011, the criteria for a rating of 40 percent, but no higher, for left lower extremity radiculopathy associated with herniated nucleus pulposis are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.123, 4.124, 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom., Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Here, the duty to notify was satisfied by letters dated April 2008, June 2008, August 2008, and February 2012, which was sent prior to the August 2008 initial unfavorable decision on the claim by the RO or prior to the April 2013 readjudication of the claims, respectively. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained service treatment and personnel records, and private and VA treatment records. The Veteran was afforded VA compensation and pension examinations germane to his claims on appeal in May 2008 and March 2012; these examinations were adequate because the examiners based their opinions upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the disabilities will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the VA examinations of record fully describe the functional effects caused by the Veteran's disabilities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This claim was remanded by the Board for additional development in February 2012. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has requested additional treatment records and provided the Veteran with new examinations in March 2012. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the relevant criteria. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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 Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." 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. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2013). Under 38 C.F.R. § 4.71a, DC 5010, arthritis due to trauma and substantiated by x-ray findings is rated as degenerative arthritis. Under DC 5003, for degenerative arthritis without compensable limitation of motion, a 10 percent rating applies where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating applies where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45(f). Right Knee Disability In this case, service connection was granted for patellofemoral chondromalacia of the right knee in an August 1991 rating decision, and a 10 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective July 4, 1991-the day after separation from service. In the August 2008 rating decision currently on appeal, the RO continued the Veteran's 10 percent disability rating under Diagnostic Code 5299-5260. Under 38 C.F.R. § 4.71a, DC 5257, a knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or, a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. Limitation of flexion of a leg warrants a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg is noncompensable when extension is limited to 5 degrees. A 10 percent evaluation is warranted with extension limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A rating of 10 percent applies where there is malunion of the tibia and fibula with slight knee or ankle disability. A rating of 20 percent applies where there is malunion of the tibia and fibula with moderate knee or ankle disability. A rating of 30 percent applies where there is malunion of the tibia and fibula with marked knee or ankle disability. A rating of 40 percent applies where there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Additional rating criteria are found under DCs 5256 (ankylosis of the knee), DC 5258 (which provides for a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint), and 5259 (which provides for a 10 percent rating for symptomatic removal of the semilunar cartilage). VA's General Counsel has clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003. VAOPGCPREC 9-98 (1998). VA's General Counsel has more recently held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2013). The Veteran contends in his June 2008 statement that his right knee disability results in difficulty squatting and kneeling; limited ability to climb due to pain, locking up, and giving way; locking and intense pain upon sitting for extended periods; giving way and intense pain upon excessive walking; inability to exercise, complete lawn care, perform some housecleaning, and climb attic stairs; and other discomfort at home. At his October 2011 Board hearing, the Veteran testified that his right knee disability requires the use of a brace and a cane, and limits his amount of driving. See transcript, pp. 13-16. He reported that he experiences a piercing and radiating pain in his right knee due to bone-on-bone contact. Id., p. 16. He also reported that his right knee sometimes locks up. Id., p. 17. Additionally, the Veteran's spouse, daughter, employer, and colleagues wrote that his right knee disability limits his mobility and his performance of certain job duties and family activities. In April 2008, a private clinician at Hermitage Imaging performed a magnetic resonance imaging (MRI) scan of the Veteran's right knee and diagnosed myxoid degeneration of the medical meniscus, degenerative fraying of the free edge of the body of the lateral meniscus, minimal tricompartmental osteoarthritic changes, and small joint effusion. At his May 2008 VA examination, the Veteran reported that he could stand for up to 15-30 minutes, and could walk for up to 1/4 mile. The Veteran also reported experiencing pain, stiffness, giving way, and locking. He denied any dislocation or effusion, any flare-ups, and any subluxation or instability. The examiner found that the Veteran had flexion to 115 degrees with pain at 110 degrees, and extension to 0 degrees without pain. The examiner found no loss of bone or part of a bone, no joint ankylosis, and no instability. Based on the examination and on April 2008 x-ray findings, the examiner diagnosed the Veteran with degenerative joint disease of the right knee. The examiner found significant effects on occupational activities, including increased absenteeism due to pain, as well as pain with prolonged walking and standing. At his March 2012 VA examination, the Veteran reported experiencing flare-ups of grinding, popping, and weakness. After considering pain and repetitive-use testing of three repetitions, the examiner found that the Veteran had flexion to 50 degrees and extension to 0 degrees. The examiner further found weakened movement, incoordination, pain, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner found that objective testing showed normal anterior, posterior, and medial-lateral stability. The examiner found no evidence or history of recurrent patellar subluxation or dislocation. The examiner found no meniscal conditions or surgical procedures for a meniscal condition. The examiner found that x-ray evidence did not show patellar subluxation. The examiner diagnosed the Veteran with degenerative arthritis and patellofemoral syndrome with chondromalacia, and found that his bending and stooping is prohibited due to limited range of motion and pain. After reviewing all of the clinical evidence and subjective complaints, the Board finds that the preponderance of the evidence shows that a disability evaluation in excess of 10 percent for the Veteran's service-connected right knee disability is not warranted. The May 2008 VA examiner found no joint ankylosis, and range of motion and other pertinent test results preclude any finding of ankylosis of the right knee in the March 2012 VA examination. The March 2012 VA examiner expressly found no subluxation or lateral instability of the Veteran's right knee. Additionally, the March 2012 VA examiner found no meniscal (semilunar cartilage) conditions or surgical procedures; moreover, while the April 2008 clinician found myxoid degeneration and degenerative fraying of the meniscus, there is no evidence of dislocated or removed semilunar cartilage. At its most limited, the Veteran's right knee had extension to 0 degrees and flexion to no less than 50 degrees including on repetition. There is no lay or medical evidence to support findings of either nonunion or malunion of the tibia and fibula, or genu recurvatum. The findings of record do not show x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The Board finds that the examiners' findings warrant the greatest probative weight based on their medical training and expertise. 38 C.F.R. § 3.159(a)(1). Consequently, a disability rating in excess of 10 percent for the Veteran's right knee disability is not warranted. Additionally, there is no factually ascertainable basis for an increase in the disability within one year prior to the date of the Veteran's claim. 38 C.F.R. § 3.400(o). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the rating criteria contemplate the Veteran's right knee disability, as it is productive of pain and functional impairment, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's right knee disability, and referral for consideration of an extraschedular rating is not warranted. Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not reported unemployability due to his right knee disability; to the contrary, he reports that while his work has been adversely affected in terms of his walking, standing, squatting, kneeling, bending, stooping, and pain, he remains gainfully employed. Thus, TDIU is not raised by the record. Spine Disability In this case, service connection was granted for herniated nucleus pulposis in an August 1991 rating decision, and a 10 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5293, effective July 4, 1991-the day after separation from service. In the August 2008 rating decision currently on appeal, the RO increased the rating for the Veteran's thoracolumbar spine disability from 10 percent to 20 percent as of March 20, 2008. In an April 2013 rating decision, the RO increased the rating for the Veteran's thoracolumbar spine disability from 20 percent to 40 percent as of February 10, 2009 per 38 C.F.R. § 4.71a, DC 5242-5237. The Veteran is also in receipt of disability ratings for radiculopathy of both lower extremities, rated at 10 percent each from October 3, 2011, and at 40 percent each from March 10, 2012, per 38 C.F.R. § 4.124a, DC 8520. A thoracolumbar spine disability may be rated pursuant to the General Rating Formula for Diseases and Injuries of the spine set forth in DCs 5235-5242. Under the general rating formula, a 20 percent rating requires that the condition be manifested by 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 rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with rating of all other disabilities, whichever method results in the higher rating. Sciatic nerve disabilities are rated at 80 percent where there is complete paralysis; the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating applies where there is severe incomplete paralysis with marked muscular atrophy. A 40 percent rating applies where there is moderately severe incomplete paralysis. Moderate incomplete paralysis is rated at 20 percent. Mild incomplete paralysis is rated at 10 percent. 38 C.F.R. § 4.124a, DC 8520. The Veteran contends in his June 2008 statement that his back disability results in pain and numbness. At his October 2011 Board hearing, the Veteran testified that his back disability prevents him from bending, squatting, and lifting. See transcript, p. 3. He also reported experiencing back pain and radiating numbness. Id. The Veteran further testified that he has ankylosis of the spine. Id., pp. 6-7. He reported that he takes time off from work at least once a month in order to renew his prescription for pain medication. Id., pp. 9-10. He further stated that he wears a back brace. Id., p. 11, 13. Additionally, the Veteran's spouse, daughter, employer, and colleagues wrote that his back disability limits his mobility and his performance of certain job duties and family activities. In May 2008, the Veteran's private physician, Tarek G. Elalayli, M.D., reviewed an MRI and diagnosed him with lumbar spondylosis with degenerative disc disease at L5-S1. At his May 2008 VA examination, the Veteran reported having numbness and pain, but no incontinence or flare-ups, and no incapacitating episodes of IVDS over the past 12 months. With consideration of pain and repetitive use, the examiner found that the Veteran had flexion to 60 degrees, with pain at 55 degrees; extension to 23 degrees, with pain at 20 degrees; lateral flexion to 25 degrees bilaterally, with pain at 25 degrees; right lateral rotation to 25 degrees, with pain at 25 degrees; and left lateral rotation to 30 degrees, with pain at 30 degrees. Based on the examination and on March 2008 MRI findings, the examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine with herniated nucleus pulposis of L5-S1. The examiner found significant effects on occupational activities, including increased absenteeism due to pain, as well as effects on usual daily activities ranging from mild to severe. The Veteran reported being employed full-time, and missing 2 weeks of work in the last 12 months due to pain in his back and knees. On February 10, 2009, a private physical therapist at Star Physical Therapy, Christi Williams, found that the Veteran had lumbar flexion to 25 degrees. In October 2011, the Veteran informed his VA physician that he had radiating pain in his bilateral lower extremities (BLE) posteriolaterally to past his calves, with numbness, tingling, and shooting pains. See Virtual VA CAPRI record dated February 2, 2012, p. 375. The VA physician found reduced sensation to pinprick bilaterally, but did not comment on the severity of the disorder. At his March 2012 VA examination, the Veteran denied experiencing any flare-ups, and denied having any incapacitating episodes of IVDS over the past 12 months. With consideration of pain and repetitive use, the examiner found that the Veteran had flexion to 10 degrees, with pain at 10 degrees. The examiner further found less movement than normal, weakened movement, excess fatigability, pain, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The examiner found severe radiculopathic numbness in both lower extremities due to sciatic nerve root involvement, but no muscle atrophy. The examiner diagnosed the Veteran with degenerative arthritis of the thoracolumbar spine, and found that his back disorder results in being unable to lift 40-70 pounds. After reviewing all of the clinical evidence and subjective complaints, the Board finds that the preponderance of the evidence shows that disability evaluations for the Veteran's service-connected back disability in excess of 20 percent from March 20, 2008, and in excess of 40 percent from February 10, 2009, are not warranted. Throughout the appellate period, range of motion and other pertinent test results preclude any finding of ankylosis of the back; the Board finds that these objective test results warrant greater probative weight than the Veteran's statements that he has been diagnosed with ankylosis because the former are based on clinicians' objective medical data. Additionally, prior to February 10, 2009, the most probative evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less; rather, the May 2008 VA examiner found that the Veteran had forward flexion of the thoracolumbar spine to 55 degrees with consideration of pain and repetitive use. Likewise, the Board finds that a disability rating in excess of 40 percent each for the Veteran's right and left lower extremity radiculopathy is not warranted, because the March 2012 VA examiner found that the Veteran does not have muscle atrophy, and no evidence to the contrary is of record. 38 C.F.R. § 4.124a, DC 8520. In the absence of muscle atrophy, the Veteran's bilateral lower extremity radiculopathy more nearly approximates the 40 percent rating for moderately severe incomplete paralysis. 38 C.F.R. § 4.7 (2013). However, the Board finds that a disability rating of 40 percent is warranted for the Veteran's right and left lower extremity radiculopathy as of October 3, 2011, because the VA physician who first reported the Veteran's bilateral lower extremity radiculopathy did not comment on the severity of the disorder, and the first physician who did comment on the severity-the March 2012 VA spine examiner-found severe radiculopathic numbness in both lower extremities due to sciatic nerve root involvement, but no muscle atrophy. Attributing the benefit of the doubt to the Veteran, and in the absence of evidence to the contrary, the Board finds that the Veteran's right and left lower extremity radiculopathy both warrant 40 percent ratings as of October 3, 2011. 38 C.F.R. § 4.3 (2013). Additionally, there is no factually ascertainable basis for an increase in the back or bilateral lower extremity radiculopathy disabilities within one year prior to the date of the Veteran's claim. 38 C.F.R. § 3.400(o). With respect to extraschedular ratings under 38 C.F.R. § 3.321, the Board finds that the rating criteria contemplate the Veteran's back disability, as it is productive of pain and functional impairment, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's back disability, and referral for consideration of an extraschedular rating is not warranted. With respect to a TDIU, the Veteran has not reported unemployability due to his back disability; to the contrary, he reports being employed full-time, and missing 2 weeks of work in the last 12 months due to pain in his back and knees. Thus, TDIU is not raised by the record. ORDER An evaluation in excess of 10 percent for a right knee disability is denied. Prior to February 10, 2009, an evaluation in excess of 20 percent for a back disability is denied. As of February 10, 2009, an evaluation in excess of 40 percent for a back disability is denied. Effective October 3, 2011, a 40 percent rating, and no higher, for right lower extremity radiculopathy is granted, subject to the law and regulations governing payment of monetary benefits. Effective October 3, 2011, a 40 percent rating, and no higher, for left lower extremity radiculopathy is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs