Citation Nr: 1611008 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 07-19 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches. 2. Entitlement to an initial disability rating in excess of 20 percent for multilevel disc disease of the lumbosacral spine, and in excess of 40 percent from March 20, 2015. 3. Entitlement to an initial compensable disability rating for right leg radiculopathy, and in excess of 10 percent from March 20, 2015. 4. Entitlement to an initial compensable disability rating for left leg radiculopathy, and in excess of 10 percent from March 20, 2015. 5. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities, prior to March 20, 2015. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1999 to September 2002 and from January 2003 to May 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland California. During the pendency of this appeal, jurisdiction was transferred to the RO in Waco, Texas. During the period of the appeal, the RO granted service connection for sleep apnea in a June 2015 rating decision. Therefore, that claim for service connection has been resolved and is no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). This case was previously before the Board in November 2010 when it was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). On his June 2007 substantive appeal, VA Form-9, the Veteran marked that he desired to testify before a member of the Board. Subsequently, in an October 2014 letter, the Veteran wrote that he wished to cancel his hearing. The hearing request has been withdrawn. See 38 C.F.R. §§ 20.703, 20.704 (2015). This appeal was processed using the Virtual VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should review this electronic record. FINDINGS OF FACT 1. From May 19, 2005, the Veteran's migraine headaches have approximated very frequent completely prostrating with prolonged attacks productive of severe economic inadaptability. 2. Prior to March 20, 2015, the Veteran's multilevel disc disease of the lumbosacral spine was characterized by forward flexion to 70 degrees with a ten degree loss after repetitive movements due to pain. There is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or any incapacitating episodes. 3. From March 20, 2015, the Veteran's multilevel disc disease of the lumbosacral spine was characterized by forward flexion to 25 degrees. There is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 4. Affording the Veteran the benefit of the doubt, from May 19, 2005, the Veteran's right leg radiculopathy has been characterized by mild incomplete paralysis. At no point during the pendency of this appeal has it been characterized by moderate incomplete paralysis. 5. Affording the Veteran the benefit of the doubt, from May 19, 2005, the Veteran's left leg radiculopathy has been characterized by mild incomplete paralysis. At no point during the pendency of this appeal has it been characterized by moderate incomplete paralysis. 6. The issue of entitlement to a TDIU is rendered moot as a result of the Board's award of a 100 percent combined disability rating for the entire claims period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent, for the service-connected migraines headaches, are met, effective May 19, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2015). 2. The criteria for an initial disability rating, in excess of 20 percent, prior to March 20, 2015, for multilevel disc disease of the lumbosacral spine, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5242 (2015). 3. The criteria for a disability rating in excess of 40 percent, after March 20, 2015, for multilevel disc disease of the lumbosacral spine, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5242 (2015). 4. The criteria for an initial separate 10 percent rating, for right leg radiculopathy, as a neurological manifestation of multilevel disc disease of the lumbosacral spine, beginning May 19, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520 (2015). 5. The criteria for a separate disability rating, in excess of 10 percent, for right leg radiculopathy, as a neurological manifestation of multilevel disc disease of the lumbosacral spine, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520 (2015). 6. The criteria for an initial separate 10 percent rating, for left leg radiculopathy, as a neurological manifestation of multilevel disc disease of the lumbosacral spine, beginning May 19, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520 (2015). 7. The criteria for a separate disability rating, in excess of 10 percent, for left leg radiculopathy, as a neurological manifestation of multilevel disc disease of the lumbosacral spine, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520 (2015). 8. The appeal of the issue of entitlement to TDIU is dismissed as moot. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 4.14, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant 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, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's increased rating claims for migraine headaches, multilevel disc disease of the lumbosacral spine, and right and left leg radiculopathy arise from his disagreement with the initial evaluations following the grants of service connection. Courts have held that 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). In this case, VCAA notice letters were sent to the Veteran in July 2005, January 2015, and April 2015. These letters informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties in obtaining evidence. Thereafter, the case was readjudicated by way of a statement of the case (SOC) in June 2007 and a supplemental statement of the case (SSOC) in June 2015. So, he has received all required notice concerning his claim, and it has been reconsidered since providing all required notice. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA and private), and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The claims file contains STRs, VA medical evidence, private medical evidence, lay statements, and the Veteran's contentions. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the Veteran was provided VA examinations to evaluate his migraine headaches, multilevel disc disease of the lumbosacral spine, and right and left leg radiculopathy in August 2005, February 2007, and March 2015. The examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examinations are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the duties to notify and assist have been met. II. Stegall Analysis As previously noted, the Board remanded this case for further development in November 2010. The Board specifically instructed the RO to contact the Veteran and schedule a hearing before a Veterans' Law Judge. Subsequently, in an October 2014 letter, the Veteran wrote that he wished to cancel his hearing request. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). III. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 (2015). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2015). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2015); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more 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). Here, the question for consideration is the propriety of the initial disability ratings assigned, evaluation of the medical evidence since the grants of service connection, and consideration of the appropriateness of "staged ratings" are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2015). Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (2015). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2014). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). IV. Analysis Migraine Headaches The Veteran contends that his migraine headaches were more severe than the initial 30 percent disability rating assigned. Based on the medical evidence of record, the Board agrees and determines that an initial 50 percent disability rating is warranted, effective May 19, 2005. The Veteran's migraine headaches are rated under DC 8100, which contemplates disability ratings for migraines. 38 C.F.R. § 4.124a, DC 8100 (2015). Under Diagnostic Code 8100, the minimum noncompensable disability rating is warranted for migraines with less frequent attacks. A 10 percent disability rating is warranted for migraines resulting in characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. In an August 2005 Compensation and Pension (C&P) examination report, the Veteran was diagnosed with migraine headaches. The Veteran reported that he started experiencing severe throbbing unilateral headaches in 2004. He noted that his symptoms consisted of sensitivity to light and noise, nausea, and vomiting. He reported that he used to experience eight to nine headaches per month but after he started using medication, the frequency was reduced to three to four times a month. The Veteran reported that each episode lasted three to four hours. During the course of his migraine headaches, the Veteran noted that he rested in a dark room, away from noise. In a February 2007 C&P examination report, the Veteran was diagnosed with prostrating migraine headaches. He reported that his headaches began in 2004 and he had additional symptoms of light and sound sensitivity, nausea, and vomiting. The Veteran reported that he had prostrating migraines three to four times per month. He noted that he had migraine headaches two times a week for the last six months. On average over the last year, he reported a headache about twice a week. The Veteran noted that the duration of his headaches varied between lasting one hour to up to two days. He reported that during a migraine, he went into a dark room and laid down because of his associated symptoms of light and sound sensitivity, nausea, and vomiting. The Veteran noted that he had four to five days off per month due to his migraine headaches. The Board finds that the Veteran's initial disability picture more nearly approximates the criteria contemplated by the maximum 50 percent rating under DC 8100. 38 C.F.R. § 4.124a, DC 8100 (2015). The Board notes that in the March 2015 C&P examination report, the examination that the RO used to award the Veteran a 50 percent disability rating effective March 20, 2015, the Veteran's migraines were characterized as bifrontal in location and occurred twice a week, lasting between three to six hours, but occasionally for several days. The Veteran also reported light sensitivity, scotomata, and nausea. He noted that during a migraine, he would typically go into a dark and quiet room to rest until the symptoms subsided. The Board finds that the Veteran's migraine headaches reported in the later March 2015 C&P examination report are fundamentally the same as those in the earlier August 2005 and February 2007 C&P examination reports. The symptoms, characteristics, and severity are, for all intents and purposes, the same. As a result, the Board finds that an initial 50 percent rating, effective May 19, 2005, is warranted. Multilevel Disc Disease of the Lumbosacral Spine Prior to March 20, 2015 The Veteran's multilevel disc disease of the lumbosacral spine is rated at 20 percent, according to the General Rating Formula, which contemplates diseases and injuries of the spine. 38 C.F.R. § 4.71a (2015). The Veteran contends that his multilevel disc disease of the lumbosacral spine warrants an initial disability rating in excess of 20 percent, effective May 19, 2005. Based on the medical evidence of record, the Board determines that the preponderance of the evidence is against the Veteran's claim and a higher initial disability rating is not warranted. The Veteran's multilevel disc disease of the lumbosacral spine may be rated pursuant to the General Rating Formula for diseases and injuries of the spine set forth in Diagnostic Codes 5235-5243. Id. The minimum 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 of more of height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. The maximum 100 percent rating is warranted for 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, unfavorable ankylosis of the entire spine. Id. The notes applicable to the General Formula are as follows: Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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. Id. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Under Diagnostic Code 5003, 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, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under Diagnostic Code 5243, intervertebral disc syndrome (IVDS) may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the Formula for Rating IVDS, incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a rating of 10 percent. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 30 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. Id. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disk syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. Note (2): If intervertebral disk syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. In an August 2005 C&P examination report, the Veteran was diagnosed with multilevel degenerative disc disease (DDD) of the lumbosacral spine with radiculopathy. He reported that he was discharged from service on a medical basis because of his low back pain after a medical board evaluation. The Veteran reported that his back pain had worsened over the years. In 2003, he was diagnosed with DDD at multiple levels. The Veteran reported symptoms of constant low back pain with dull aching to sharp pain. He stated that his pain level was mostly nine out of ten without medication and six to seven out of ten with medication. The Veteran reported that he had pain that radiated to his bilateral lower extremities. He noted that he experienced flare-ups of severe back pain during which time he had difficulty with mobility. These flare-ups occurred every six months and lasted for three weeks. The Veteran complained of spasms in his low back which were aggravated by prolonged sitting and standing longer than 20 to 30 minutes or lifting heavy objects. He denied any loss of bowel or bladder control. The examiner noted that the Veteran's gait was coordinated and smooth and he did not use any assistive devices. Range of motion results were forward flexion to 70 degrees with an additional ten degree loss after repetitive-use testing, due to pain and to a lesser extent weakness, fatigability, and lack of endurance. Extension, bilateral lateral flexion, and bilateral rotation were all normal, but with pain and grimacing during motion. There was an additional ten degree loss after repetitive-use testing due to pain and to a lesser extent weakness, fatigability, and lack of endurance. Straight leg raise was positive with 40 degrees to the right leg and 50 degrees to the left leg. Muscle strength was normal. In a February 2007 C&P examination report, the Veteran was diagnosed with DDD of the lumbar spine. He reported continuous dull pain in his low back that was seven out of ten at rest. He noted that he had pain radiating down his legs at night. He reported symptoms of stiffness, instability, fatigue, and lack of endurance. The Veteran noted that his back pain was brought on by sitting between 40 to 60 minutes and standing or walking more than 15 minutes. He reported that after repetitive bending, he developed pain in his back. The Veteran reported that he had no flare-ups but had stable chronic daily pain. He noted that he had no surgery on his back and did not wear a brace. The Veteran reported working with some restrictions due to his back pain. The examiner noted that the Veteran used no assistive devices, had a smooth coordinated gait, and did not appear to be in pain. Range of motion results were flexion to 80 degrees with objective evidence of painful motion beginning at 80 degrees. The Deluca factor was 10 degrees functionally limited by pain, fatigability, and lack of endurance, without loss of coordination; Extension to 15 degrees with slight pain. The Deluca factor was two degrees functionally limited by pain, fatigability, and lack of endurance, without loss of coordination; Rotation of the spine 45 degrees bilaterally with some low back pain. The Deluca factor was 2 degrees functionally limited by pain, fatigability, and lack of endurance, without loss of coordination; Lateral bending was 30 degrees bilaterally with some low back stiffness. The Deluca factor was two degrees functionally limited by pain, fatigability, and lack of endurance, without loss of coordination. On review, the Board finds that an initial disability rating in excess of 20 percent is not warranted under DC 5242. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5242 (2015). Under DC 5242, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. The Board notes that in the August 2005 and February 2007 C&P examination reports, the Veteran's forward flexion was not to 30 degrees or less and he had no ankylosis of the spine. Additionally, the Veteran was not diagnosed with IVDS so a higher rating based on incapacitating episodes is not applicable. Id. At no time prior to March 20, 2015 did the Veteran's multilevel disc disease of the lumbosacral spine approximate a higher initial disability rating. Id. As such, the Board determines that the preponderance of the medical evidence is against the Veteran's claim and an initial disability rating in excess of 20 percent is not warranted prior to March 20, 2015. From March 20, 2015 In a March 2015 C&P examination report, the Veteran was diagnosed with a lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran denied any bowel, bladder, or sexual dysfunction due to his back disability. He reported flare-ups which consisted of pain, weakness, stiffness, and lower extremity radiculopathy. Range of motion was forward flexion to 25 degrees, extension to 15 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that the Veteran had decreased flexibility and endurance. The Veteran exhibited pain during forward flexion, extension, right lateral flexion, and right lateral rotation. He had localized tenderness over the left paralumbar muscle and left SI joint. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. The Veteran had guarding or muscle spasm but it did not result in an abnormal gait or abnormal spinal contour. The Veteran's localized tenderness, likewise, did not result in an abnormal gait or an abnormal spinal contour. The Veteran had no guarding. Muscle strength testing was four out of five for right and left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran had no muscle atrophy. The Veteran was diagnosed with IVDS but had no signs or symptoms that required bed rest prescribed by a physician. The examiner reported that the Veteran used no assistive devices as a normal mode of locomotion. On review, the Board finds that a disability rating of 40 percent, but no higher, is warranted under DC 5242, effective March 20, 2015. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5242 (2015). A 50 percent disability rating is not warranted because the Veteran did not have ankylosis of the entire thoracolumbar spine. Additionally, a higher disability rating of 60 percent for IVDS is not warranted because the Veteran had no incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. As such, the Board determines that the preponderance of the medical evidence is against the Veteran's claim and a disability rating in excess of 40 percent is not warranted after March 20, 2015. Right and Left Leg Radiculopathy The Veteran's right and left leg radiculopathy was rated as noncompensable, prior to March 20, 2015, and rated at 10 percent thereafter, according to DC 8520, which rates paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520 (2015). The Veteran contends that his right and left leg radiculopathy warrants an initial compensable disability rating prior to March 20, 2015, and a disability rating in excess of 10 percent from March 20, 2015. Based on the medical evidence of record, the Board determines that an initial disability rating of 10 percent, but no higher, effective May 19, 2005 is warranted, but that a disability rating in excess of 10 percent throughout the period on appeal is not warranted. Under DC 8520, the minimum 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent disability rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent disability rating is warranted for moderately severe paralysis of the sciatic nerve. A 60 percent disability rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The maximum 80 percent disability rating is warranted for complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. In the August 2005 C&P examination report, the Veteran reported that his back pain radiated to his bilateral lower extremities, with shooting pain to the right foot. The VA examiner noted that the Veteran had DDD with right leg radiculopathy status post radiofrequency ablation of the lumbar medial branch nerve and diagnosed him with multilevel DDD of the lumbosacral spine with radiculopathy. In a January 2006 treatment report, the clinical impression of the Veteran was that he had mild radiculopathy. In a February 2007 C&P examination report, the Veteran reported that his legs burned down to his toes at night when he slept, which caused him to lose sleep. In a March 2015 C&P examination report, the Veteran was found to have radicular pain or other signs and symptoms due to radiculopathy. He had no constant pain in either his right or left lower extremities but had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his left lower extremity. The examiner noted that the Veteran had mild sciatic nerve radiculopathy on his right and left sides. On review, affording the Veteran the benefit of the doubt, the Board finds that a disability rating of 10 percent, but no higher, is warranted under DC 8520, effective May 19, 2005, because the Veteran was diagnosed with mild incomplete paralysis of the sciatic nerve on the right and left sides. 38 C.F.R. § 4.124a, DC 8520 (2015). At no point during the pendency of this appeal did the Veteran have moderate incomplete paralysis of the sciatic nerve As such, a 20 percent disability rating is not warranted. Id. The Board acknowledges that the Veteran is competent to report his observable migraine headaches, lumbosacral spine, and right and left leg radiculopathy symptoms that he experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, without the appropriate medical training and expertise, which the record has failed to show, the Veteran is not competent to provide an opinion on a medical matter, such as the nature and severity of his migraine headaches, lumbosacral spine, and right and left leg radiculopathy. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the medical evidence of record to be highly probative as to the current nature and severity of the Veteran's migraine headaches, lumbosacral spine, and right and left leg radiculopathy. The reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria. Thus, although the Veteran's competent and credible reports of symptoms have been considered and are probative, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals, and the opinions of the August 2005, February 2007, and March 2015 C&P examiners. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Entitlement to a TDIU Given the Board's assignment of a combined 100 percent evaluation for the Veteran's service connected disabilities, effective from the date that the AOJ received the Veteran's claim of service connection, the Board finds that the issue of entitlement to TDIU is moot. See Locklear v. Shinseki, 24 Vet. App. 311, 314 fn 2 (2011) (noting that because the Veteran was awarded a 100 percent schedular disability rating effective from May 20, 1990, entitlement to TDIU since that date effectively was mooted); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU post-July 1989 moot where 100 percent schedular rating was awarded in July 1989). In so concluding, the Board is cognizant of the holding in Bradley v. Peake, wherein the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). 22 Vet. App. 280, 293-94 (2008). In the instant case, however, the Veteran is not service-connected for a single disability at 100 percent and thus, there is no reason to develop the issue for the purpose of determining whether the Veteran may be entitled to SMC. Extraschedular Considerations An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. At 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (2015). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected migraine headaches, lumbosacral spine, and right and left leg radiculopathy. See Thun, 22 Vet. App. at 115. When comparing the Veteran's migraine headaches, lumbosacral spine, and right and left leg radiculopathy symptoms with the schedular criteria, the Board finds that his symptoms are congruent with the disability pictures represented by the 50 percent rating assigned for his migraine headaches, his 20 percent rating, effective May 19, 2005, for multilevel disc disease of the lumbosacral spine, and the 40 percent rating effective from March 20, 2015, and 10 percent ratings for right and left leg radiculopathy. See 38 C.F.R. §§ 4.71a, 4.124a, DCs 8100, 5242, 8520 (2015). Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from migraine headaches, lumbosacral spine, and right and left leg radiculopathy with the pertinent schedular criteria does not show that his service-connected migraine headaches, lumbosacral spine, and right and left leg radiculopathy present "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2015). Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's migraine headaches, lumbosacral spine, and right and left leg radiculopathy. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the veteran's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d. 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Moreover, at no time during the period under consideration has the Veteran asserted that the schedular criteria for his service-connected disabilities do not adequately described or reflected his symptomatology. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER Entitlement to an initial disability rating of 50 percent for migraines headaches is granted, effective May 19, 2005, subject to the laws and regulations governing monetary benefits. Entitlement to an initial disability rating, in excess of 20 percent, for multilevel disc disease of the lumbosacral spine, and in excess of 40 percent from March 20, 2015, is denied. Entitlement to an initial compensable rating of 10 percent, but no higher, for right leg radiculopathy is granted, effective May 19, 2005, subject to the laws and regulations governing monetary benefits. Entitlement to an initial compensable rating of 10 percent, but no higher, for left leg radiculopathy is granted, effective May 19, 2005, subject to the laws and regulations governing monetary benefits. The issue of entitlement to TDIU is dismissed as moot. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs