Citation Nr: 1420122 Decision Date: 05/06/14 Archive Date: 05/16/14 DOCKET NO. 08-31 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to higher ratings for lumbar disc disease, rated 10 percent prior to January 9, 2010; 20 percent from January 9, 2010, to May 25, 2010; and 40 percent from May 26, 2010. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity. 4. Entitlement to a rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The appellant is a Veteran with 21 years of active duty service from August 1979 to September 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which continued a 10 evaluation for lumbar disc disease. A July 2010 rating decision increased the rating for lumbar disc disease to 20 percent effective January 9, 2010, and increased the rating to 40 percent effective May 26, 2010. The increased rating issue with respect to hypertension is before the Board on appeal from a July 2008 rating decision which denied a compensable rating for hypertension. A February 2010 rating decision granted an increased rating, to 10 percent, effective September 25, 2007. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Because the appellant has not withdrawn his appeal as to the issue of a disability rating greater than assigned, the issue remained in appellate status. The Veteran had also initiated appeals of the effective date of the award of service connection for left lower leg radiculopathy and a denial of service connection for right leg lumbar radiculopathy. An August 2008 rating decision granted an earlier effective date of service connection for left lower leg radiculopathy, rated 10 percent, effective June 2, 2006, and a February 2010 rating decision granted service connection for right leg lumbar radiculopathy rated 10 percent, effective September 25, 2007. Additionally, the Veteran initiated an appeal for service connection for a right hand disability manifested by loss of feeling in the hand. A February 2010 rating decision granted service connection for peripheral neuropathy of the right hand, rated at 10 percent, effective September 25, 2007. Consequently, these matters are not before the Board. The issue of a rating in excess of 10 percent for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to December 21, 2006, the Veteran's lumbar disc disease is not shown to have been manifested by forward flexion of the thoracolumbar spine to 60 degrees or less, or by a combined range of motion (ROM) of the thoracolumbar spine of 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour is not shown; ankylosis of the thoracolumbar spine is not shown; incapacitating episodes of disc disease are not shown. 2. From December 21, 2006, to May 25, 2010, the Veteran's lumbar disc disease is reasonably shown to have been manifested by muscle spasm severe enough to result in an abnormal spinal contour; forward flexion of the thoracolumbar spine to 60 degrees or less, ankylosis of the thoracolumbar spine, and/or incapacitating episodes of disc disease are not shown. 3. From May 26, 2010, the Veteran's lumbar disc disease is not shown to have been manifested by ankylosis of the thoracolumbar spine; incapacitating episodes of disc disease are not shown. 4. Prior to June 2, 2006, the Veteran's lumbar disc disease is not shown to have been manifested by symptoms analogous to mild neuritis of the sciatic nerve of the left lower extremity. 5. From June 2, 2006, the Veteran's lumbar disc disease was manifested by symptoms analogous to mild neuritis of the sciatic nerve of the left lower extremity, but is not shown to have been manifested by symptoms analogous to moderate, or greater, neuritis. 6. Prior to September 25, 2007, the Veteran's lumbar disc disease is not shown to have been manifested by symptoms analogous to mild neuritis of the sciatic nerve of the right lower extremity. 7. From September 25, 2007 the Veteran's lumbar disc disease was manifested by symptoms analogous to mild neuritis of the sciatic nerve of the right lower extremity, but is not shown to have been manifested by symptoms analogous to moderate, or greater, neuritis. CONCLUSIONS OF LAW 1. Prior to December 21, 2006, a rating in excess of 10 percent for the orthopedic manifestations of the Veteran's lumbar disc disease is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2013). 2. From December 21, 2006, to May 25, 2010, a 20 percent rating, but no higher, is warranted for the orthopedic manifestations of the Veteran's lumbar disc disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2013). 3. From May 26, 2010, a rating in excess of 40 percent is not warranted for the orthopedic manifestations of the Veteran's lumbar disc disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2013). 4. A rating in excess of 10 percent for radiculopathy of the Veteran's left lower extremity, as a neurologic abnormality associated with his service-connected lumbar disc disease, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.71a, 4.124a, Diagnostic Code 8620 (2013). 5. A rating in excess of 10 for radiculopathy of the Veteran's right lower extremity, as a neurologic abnormality associated with his service-connected lumbar disc disease, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.71a, 4.124a, Diagnostic Code 8620 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, 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). The appellant was advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). November 2006 and December 2006 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in December 2006, November 2007, January 2010, and May 2010. The Board notes that the VA examination reports contain sufficient findings and informed discussion of the pertinent history and features of the disability to be adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria and Factual Background Disability ratings are determined by the application of a schedular rating, which is based on an average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability picture more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Intervertebral disc syndrome (IVDS) is rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS); whichever is more favorable to the Veteran. 38 C.F.R. § 4.71a, Codes 5242, 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71, Code 5243, Note 1. Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Notes following the General Rating Formula criteria provide the following: First, associated objective neurological abnormalities are to be rated separately, under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM stated in the regulation. 38 C.F.R. § 4.71a. Code 8520 provides a rating for paralysis of the sciatic nerve. Under Code 8520, a 10 percent rating is warranted when incomplete paralysis of the sciatic nerve is mild; a 20 percent rating is warranted when incomplete paralysis of the sciatic nerve is moderate; a 40 percent rating is warranted when incomplete paralysis of the sciatic nerve is moderately severe; a 60 percent rating is warranted when incomplete paralysis of the sciatic nerve is severe, with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve, including when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. According to the note preceding Code 8510, the term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When evaluating disabilities of the musculoskeletal system, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Id. The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. May 2006 private treatment records from Dr. E.C. show that the Veteran complained of increased low back pain since February 2006 and pain radiating down his left leg of about one month duration. He reported pain on movement, no loss of bowel or bladder control, numbness/tingling of his left leg that would come and go, and that he had difficulty with driving for prolonged periods. Physical examination found normal posture and gait, tenderness to palpation, normal ROM, and normal lower extremity reflexes, sensation, and strength. A June 2006 private treatment record from Dr. E.C. shows that the Veteran's thoracic spine appeared normal, and had no abnormalities on palpation and no muscle spasm. The thoracolumbar spine appeared normal, and had no tenderness on palpation and no pain on motion, flexion, or extension. The lumbosacral spine appeared normal, and was tender on palpation, had no muscle spasms, and there was no pain on motion. Neurological evaluation revealed no sensory abnormalities, no motor dysfunction, normal gait and stance, and no peripheral neuropathy. An MRI of the lumbosacral spine revealed spondylolisthesis, spondylosis, foraminal stenosis, and degenerative disc disease. A June 2006 private treatment record from Dr. E.C. shows that an MRI revealed spondylolisthesis, spondylosis, foraminal stenosis, disc herniations, and disc degenerative changes of the thoracolumbar spine. A July 2006 private treatment record from Dr. B.R. shows that the Veteran complained of low back pain down the left leg, associated numbness in the left leg, and a burning sensation in the lower back. Physical examination found no weakness, coordination abnormalities, or sensory deficit. September, October, and November 2006 private treatment records from Dr. T.V. show that the Veteran reported that over the preceding 6 months he had low back pain with pain radiating down the left leg. The Veteran described the pain as numbness, worsened by walking, standing, bending, sitting, and lifting. Physical examination found the Veteran had full and unrestricted ROM of the lumbar spine, palpatory paraspinal tenderness on the left, neurologically intact, tendon weakness on the left, and lumbar region tenderness with left radiculopathy in the L4/5 distribution. MRI of the lumbar spine revealed degenerative disc disease throughout the lumbosacral spine and lumbar disc herniation. In a November 2006 statement, the Veteran asserted that he began to notice back pain and numbness down his leg two years prior. He also stated that he was unable to sit for more than 30 minutes, walk without pain and numbness, or sleep at night without getting up and walking around two or three times. A December 2006 private treatment record from Dr. E.C. shows that the Veteran had bilateral muscle spasms in the lower back, no leg weakness, and numbness of the left leg but not the right leg. The assessment was lumbar stenosis and lumbar radiculopathy. On December 2006 VA examination, the Veteran reported that he had increased pain over the preceding year and a half, which would get worse when he walked, stood, or sat for long periods. He also reported that the pain radiated down his left leg with some sensation changes down his left leg. He reported that he had no bowel or bladder changes, incapacitating episodes, flare-ups, or weakness. Physical examination found normal muscle tone, full muscle strength, and grossly intact sensation to light touch except for the left lower leg which was decreased in the L5 dermatomal region. There was loss of lumbar lordosis. ROM of the thoracolumbar spine was flexion to 70 degrees with pain, extension to 10 degrees with pain, left and right lateral flexion to 15 degrees, and left and right rotation to 20 degrees. After repetitive motion there was additional loss of joint function of the lumbosacral spine of 10 percent due to pain. On November 2007 VA examination, the Veteran reported that he had lower back pain radiating to the left lower extremity and numbness and weakness of the left lower extremity. He also reported that for the preceding 7-8 months he began having right leg numbness and weakness and shooting pain from the lower back to his right lower extremity off and on. There were no bowel or bladder symptoms and no incapacitating episodes. Neurological evaluation found normal muscle strength and tone, normal gait, intact sensation to pin prick except for tingling sensation on pinprick on both lower extremities. Physical examination found tenderness of the lumbar paravertebral muscles, no muscle spasms, and ROM of the lumbar spine was flexion to 65 degrees with pain, extension to 15 degrees, lateral flexion to 18 degrees, and rotation to 18 degrees. The examiner found no focal neurological deficit and no focal motor or sensory loss. A subsequent January 2008 VA neurological evaluation did not find electrodiagnostic evidence of large fiber sensorimotor peripheral polyneuropathy. A July 2009 private treatment record from Dr. T.V. shows that the Veteran reported pins and needles, burning, and sharp pain in the left leg. Dr. T.V. noted no change in review of systems since October 2008. Restricted duty, no sports or lifting, and restriction of traveling were recommended. On January 2010 VA neurological examination, the Veteran reported numbness and weakness of both lower extremities, the left more than right, and low back pain that radiates down both lower extremities. The examiner noted that the Veteran's lumbar radiculopathy symptoms are intermittent and "moderately severe." There was normal strength of the lower extremities, 2+ reflexes on the lower extremities except 1+ on the right ankle jerk, normal gait, and mildly decreased pinprick and light touch sensation noted on the dermatomal distribution of L4-L5 bilaterally on both lower extremities in patchy areas. Physical examination found tenderness of the lumbar paravertebral muscles, mostly on the right side, and mild paraspinal spasm. ROM of the lumbar spine was flexion to 45 degrees, extension to 15 degrees, lateral flexion to 15 degrees, and rotation to 18 degrees. In his March 2010 statement, the Veteran stated that he had increased pain, effected range of motion, was unable to bend down, and that it took him a while to get out of bed due to pain. On May 2010 VA examination, the Veteran reported constant low back pain that is worse when the weather changes, numbness, paresthesias, leg or foot weakness, fatigue, decreased motion, stiffness, weakness, spasms, and shooting pain to his lower extremities. There were no incapacitating episodes and no ankylosis of the spine. The Veteran had an antalgic gait with poor propulsion and lumbar flattening. Muscle spasm, guarding, pain with motion, and tenderness of the thoracic spine was noted, and was severe enough to result in an abnormal gait or abnormal spinal contour. Detailed motor examination found normal muscle strength in the hips, knees, ankles, and great toes. Detailed sensory examination found normal sensation to light touch. Detailed reflex examination found hypoactive knee and ankle jerk on both sides. ROM of the thoracolumbar spine was flexion from 0 to 20 degrees, extension from 0 to 8 degrees, left and right lateral flexion from 0 to 7 degrees, left and right rotation from 0 to 7 degrees, with objective pain on active ROM. There was no additional limitation on repetitive testing. The Veteran reported that he was unemployed and last worked one week prior as a VA counselor. The examiner opined that the Veteran's lumbar disc derangement and lower back pain would significantly affect the Veteran occupation due to decreased mobility, problems with lifting and carrying, and pain, including pain and mobility related to prolonged walking, standing, climbing, bending, squatting, or repeated stair climbing, and the inability to lift more than 25 pounds repeatedly. Impact on usual daily activities included moderate effects on chores and shopping; severe effects on exercise, sports, recreation, and traveling; and mild effects on bathing, dressing, toileting, and grooming. A December 2011 statement from the Veteran's wife indicates that due to his lower back injuries, the Veteran is unable to keep his mind occupied in a hobby he enjoys. Analysis In his August 10, 2006, statement, the Veteran asserted that his back condition "ha[d] worsened." The Veteran has been rated 10 percent prior to January 9, 2010; 20 percent from January 9, 2010, to May 25, 2010; and 40 percent from May 26, 2010, for lumbar disc disease, under Code 5243-5237. The Board is granting a 20 percent rating, and not higher, for orthopedic manifestations of the Veteran's service-connected lumbar disc disease from December 21, 2006. Prior to December 21, 2006, the Veteran's lumbar disc disease is not shown to have been manifested by forward flexion of the thoracolumbar spine to 60 degrees or less, or by a combined range of motion (ROM) of the thoracolumbar spine of 120 degrees or less, or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. May and June 2006 private treatment records from Dr. E.C. show that the Veteran had normal ROM with no pain on motion, tenderness to palpation, but normal posture and gait. September through November private treatment records from Dr. T.V. show that the Veteran had full and unrestricted ROM of the lumbar spine and lumbar tenderness. A December 2006 private treatment record from Dr. E.C. shows that the Veteran had muscle spasms in the lower back. Although tenderness and muscle spasm was noted prior to December 21, 2006, VA examination, the evidence of record does not show that such resulted in an abnormal gait or abnormal spinal contour. While the Veteran complained that he had back pain, was unable to sit for extended periods, was unable to walk without pain, and was unable to sleep at night without getting up, such symptoms are contemplated by the rating criteria for a 10 percent rating. No incapacitating episodes were noted. As no objective evidence shows a higher degree of impairment due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, a rating in excess of 10 percent under the General Formula is not warranted prior to December 21, 2006. From December 21, 2006, it is reasonably shown that the Veteran's lumbar disc disease was manifested by muscle spasm and tenderness of the thoracolumbar spine severe enough to result in abnormal spinal contour. The December 21, 2006 VA examiner noted loss of lumbar lordosis, and a December 20, 2006, private treatment record from Dr. E.C. shows that the Veteran had bilateral muscle spasms in the lower back. The Board finds that such findings reflect the criteria of muscle spasm severe enough to result in abnormal spinal contour, warranting a 20 percent rating. ROM testing on December 2006, November 2007, and January 2010 VA examinations does not warrant a rating in excess of 20 percent. Even when considering the additional limitation of motion of the lumbosacral spine due to pain on repetitive testing, (noted on November 2007 VA examination as a 10 percent reduction), the Veteran's ROM and combined ROM do not meet the criteria for a rating in excess of 20 percent; forward flexion of the thoracolumbar spine is not shown to be limited to 30 degrees or less, and ankylosis of the thoracolumbar spine is also not shown. Accordingly, a 20 percent rating, but not higher, for lumbar disc disease is warranted from December 21, 2006, to May 25, 2010, under the General Formula. From May 26, 2010, it not shown that the Veteran's lumbar disc disease has been manifested by unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine so as to warrant a rating in excess of 40 percent for this period. On May 26, 2010, VA examination, the Veteran's ROM showed forward flexion of the thoracolumbar spine to 20 degrees. The Board finds that such finding reflects the criteria of forward flexion of the thoracolumbar spine to 30 degrees or less, warranting a 40 percent rating under the General Formula. The May 2006 examiner found no additional limitation on repetitive use testing, and no ankylosis of the spine nor incapacitating episodes were noted. Accordingly a rating in excess of 40 percent is not warranted for lumbar disc disease from May 26, 2010. Regarding objective neurological symptoms associated with the Veteran's service-connected lumbar disc disease, a higher rating for either lower extremity is not warranted at any time during the appeal period. A 10 percent rating for left lower extremity radiculopathy has been in effect since June 2, 2006, under Diagnostic Code 8520, and a 10 percent rating for right lower extremity radiculopathy has been in effect since September 25, 2007, under Diagnostic Code 8520. Prior to June 2, 2006, the preponderance of the evidence is against a finding that the Veteran's lumbar disc disease included objective manifestations consistent with left lower extremity radiculopathy. Although the record shows that the Veteran complained of pain radiating down his left leg and intermittent numbness/tingling of his left leg prior to June 2, 2006, objective neurological abnormalities of the left lower extremity related to his service-connected lumbar disc disease were not shown. Notably, May and June 2006 private treatment records from Dr. E.C. show normal lower extremity reflexes, sensation, and strength, and no peripheral neuropathy. Accordingly, the Board finds that it is not shown that prior to June 2, 2006, the Veteran had objective neurological abnormalities of the left lower extremity. Likewise, prior to September 25, 2007, the preponderance of the evidence is against a finding that the Veteran's lumbar disc disease included objective manifestations consistent with right lower extremity radiculopathy. Notably, private treatment records prior to the November 2007 VA examination are silent for any complaints related to pain, numbness, or weakness of the right lower extremity. Significantly, a December 2006 private treatment record from Dr. E.C. shows that the Veteran did not have weakness or numbness of the right leg. It is not shown that either left or right lower extremity radiculopathy related to the Veteran's service-connected lumbar disc disease was manifested by symptoms analogous to moderate, or greater, incomplete paralysis of the sciatic nerve at any time since service connection was granted for these disabilities. This is so because the neurological involvement of the left and right lower extremities was not more than mild and was wholly sensory during the entirety of this period. Notably, private treatment records prior to December 2006 noted left radiculopathy in the L4/5 distribution, but found no strength, motor, or sensory deficits. On December 2006 VA examination, physical examination found normal muscle tone, full muscle strength, and grossly intact sensation to light touch except for the left lower leg which was decreased in the L5 dermatomal region. November 2007 VA examination found normal muscle strength and tone, normal gait, and intact sensation to pin prick except for tingling sensation on pinprick on both lower extremities. The Board finds that such symptoms were, at most, mildly disabling. On November 2007 VA examination, the Veteran reported that he began having intermittent right leg numbness, weakness, and pain over the preceding 7-8 months, and neurological testing found normal muscle strength and tone, normal gait, and intact sensation to pinprick except for tingling sensation on pinprick on the right lower extremity. The Board finds that such neurological abnormality was no more than mildly disabling. On January 9, 2010, VA examination, the Veteran reported numbness and weakness of both lower extremities, and back pain that radiated down both lower extremities. While the examiner opined that the Veteran's "back pain and lumbar radiculopathy symptoms" were "moderately severe," this assessment of severity appears to encompass both the orthopedic and neurological criteria and does not address the neurologic symptomatology alone. Further, the preponderance of the evidence is against a finding that the Veteran met the criteria for moderately severe or even moderate neurological symptomatology under Diagnostic Code 8520 at any point during this appeal. As noted, the earlier medical evidence, prior to January 2010, did not reflect more than mild neurological symptomatology as to either lower extremity. Further, even the January 2010 examiner acknowledged that the Veteran's neurological symptoms were not constant, as he described them as "intermittent." In addition, neurological testing in January 2010 found normal strength (5/5) of the lower extremities, 2+ reflexes on the lower extremities (except 1+ on the right ankle jerk and 2 on the left), normal gait, and only "mildly" decreased pinprick and light touch sensation noted on the dermatomal distribution of L4-L5 bilaterally on both lower extremities "in patchy areas." Further, position sense and vibration sense on the feet were intact. Accordingly, the Board finds that a rating in excess of 10 percent for incomplete paralysis of the sciatic nerve with respect to either lower extremity is not warranted. Regarding rating under the Formula for Rating IVDS, incapacitating episodes of disc disease are not alleged or shown at any point throughout the entire appeal period. Accordingly, ratings in excess of 10 percent for orthopedic manifestations of the Veteran's service-connected lumbar disc disease prior to December 21, 2006, in excess of 20 percent from December 21, 2006, to May 25, 2010, and in excess of 40 percent from May 26, 2010, are not warranted under the Formula for Rating IVDS. In arriving at this conclusion, the Board has specifically considered whether the Veteran is entitled to additional "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It is the Board's conclusion, however, that staged ratings are not warranted beyond those granted in this decision. The Board has considered whether referral for extraschedular consideration is warranted for the orthopedic manifestations of the Veteran's lumbar disc disease and for the neurological abnormalities associated with his lumbar disc disease. There is no objective evidence of impairment due to symptoms of the orthopedic manifestations and/or neurological abnormalities associated with his lumbar disc disease not encompassed by the schedular ratings assigned. The Veteran reports pain, limitation of motion, numbness, and sensory deficits due to his low back disability: all these symptoms are addressed in the Diagnostic Codes discussed above. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration of his lumbar disc disease is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the evidence of record does not suggest, and the Veteran has not alleged unemployability due to his lumbar disc disease and peripheral neuropathy disabilities. Although the Veteran reported on May 2010 VA examination, that he was unemployed and last worked a week prior to the examination, more recent VA treatment records from December 2013 show that the Veteran is employed and able to do his work. Accordingly, the Board finds that the matter of entitlement to a total rating based on individual unemployability has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 10 percent for orthopedic manifestations of the Veteran's lumbar disc disease prior to December 21, 2006, is denied. A rating of 20 percent, but no higher, for orthopedic manifestations of the Veteran's lumbar disc disease is granted from December 21, 2006, subject to the laws and regulations governing the payment of compensation benefits. A rating in excess of 40 percent for orthopedic manifestations of the Veteran's lumbar disc disease from May 26, 2010, is denied. A rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy is denied. A rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy is denied. REMAND A July 2008 rating decision denied an increased (compensable) rating for hypertension. In August 2008, the Veteran filed a notice of disagreement with that decision. A February 2010 rating decision granted an increased rating, to 10 percent, effective September 25, 2007. As the appellant has not withdrawn his appeal as to the issue of a disability rating greater than assigned, the issue remained in appellate status. The filing of a timely NOD initiates the appeal process. As a statement of the case has not been issued with respect to the increased rating claim for hypertension, the Board is required to remand the matter for such action. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Furnish the Veteran with an SOC with respect to his claims for an increased rating for hypertension. Afford him a reasonable opportunity for response. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect his appeal of this issue to the Board. As to any issue where a timely substantive appeal is received, such issue should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs