Citation Nr: 1613730 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 13-00 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable disability rating for lumbar degenerative disc disease (DDD) with spondylolisthesis, prior to December 18, 2014, and in excess of a 40 percent disability rating thereafter. 2. Entitlement to an initial compensable rating for radiculopathy of the left lower extremity associated with lumbar degenerative disc disease with spondylolisthesis, prior to December 18, 2014, and in excess of a 10 percent disability rating thereafter. 3. Entitlement to an initial compensable rating for radiculopathy of the right lower extremity associated with lumbar degenerative disc disease with spondylolisthesis, prior to December 18, 2014, and in excess of a 10 percent disability rating thereafter. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1994 to September 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in February 2011. The RO issued a statement of the case (SOC) in October 2012. The Veteran subsequently perfected her appeal with a VA Form 9 in December 2012. In a March 2015 rating decision, the RO increased the rating for the service-connected lumbar degenerative disc disease (DDD) with spondylolisthesis from 0 percent to 40 percent disabling, effective December 18, 2014. As this rating action represents a partial grant of the benefit sought on appeal, as it pertains to the issue of the initial evaluation assigned for the service-connected lumbar degenerative disc disease with spondylolisthesis, this matter remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). By that same March 2015 rating decision, the RO granted service connection for radiculopathy of the left lower extremity, evaluated as 10 percent disabling, effective from December 18, 2014, and radiculopathy of the right lower extremity, evaluated as 10 percent disabling, effective from December 18, 2014. The Board considers these issues part and parcel of the underlying claim seeking a higher rating for the back disability. In March 2015, the RO issued a supplemental SOC that addressed the evaluation of the service-connected lumbar degenerative disc disease with spondylolisthesis. In August 2015, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Prior to December 18, 2014, the Veteran's lumbar degenerative disc disease (DDD) with spondylolisthesis was manifested by full range of motion of the thoracolumbar spine with no evidence of pain with motion but subjective complaints of functional impairment with objective evidence of abnormal working movement of the body. 2. From December 18, 2014, the Veteran's lumbar degenerative disc disease (DDD) with spondylolisthesis was manifested by flexion of the thoracolumbar spine of 30 degrees or less, but not unfavorable ankylosis of the entire thoracolumbar spine. 3. Beginning December 18, 2014, the Veteran's radiculopathy of the left lower extremity is manifested by moderately severe incomplete paralysis. 4. Beginning December 18, 2014, the Veteran's radiculopathy of the right lower extremity is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, and no greater, for lumbar degenerative disc disease (DDD) with spondylolisthesis, prior to December 18, 2014, are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5243 (2015). 2. The criteria for a disability rating in excess of 40 percent for lumbar degenerative disc disease (DDD) with spondylolisthesis, from December 18, 2014, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5243 (2015). 3. Effective December 18, 2014, the criteria for a rating of 40 percent, and no greater, for left lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155, 107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015). 4. Effective December 18, 2014, the criteria for a rating of 20 percent, and no greater, for right lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155, 107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA an obligation to notify claimants what information or evidence is needed for claim substantiation and respective evidentiary gathering duties. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned 0 percent rating for her service connection for lumbar degenerative disc disease with spondylolisthesis effective September 3, 2009. The Board also notes that the RO granted service connection in March 2015 for left lower extremity radiculopathy and right lower extremity radiculopathy, which the Board has considered part and parcel of the underlying claim seeking a higher rating for the lumbar DDD with spondylolisthesis. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006); see also 38 C.F.R. § 3.159(b)(3)(i) (2015). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record reflects that at the August 2015 hearing, the VLJ explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the hearing. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, and VA examination reports. Her statements, as well as a friend's statement, in support of the claim are also of record. After a careful review of such statements, the Board has concluded that no available, pertinent evidence has been identified that remains outstanding. The Veteran underwent VA examinations in May 2010, and December 2014. These examinations are found to be adequate in so far as they thoroughly and accurately portray the extent of the lumbar DDD with spondylolisthesis spine disability. They were each conducted after a review of the claims file and with a history obtained from the Veteran. The lumbar spine was tested for range of motion and functional capacity. Diagnostic testing to include an X-ray, was reviewed. Therefore, the Board finds that the Veteran has been provided adequate medical examinations in conjunction with her claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one). The Veteran has not identified any pertinent evidence that remains outstanding. Accordingly, VA's duty to assist is met and the Board will address the merits of the claim. II. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2015). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Another intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Lumbar spine disabilities are rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedule criteria indicates that, 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, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2015). Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, 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. As it pertains to radiculopathy, diagnostic Code 8520 contemplates impairment of the sciatic nerve. Incomplete mild paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. An 80 percent rating requires complete paralysis of the sciatic nerve, which is characterized by foot dangle and drop, no active movement possible of muscle below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a (2015). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a) (2015). III. Lumbar Degenerative Disc Disease with Spondylolisthesis The Veteran claims that she is entitled to an initial disability evaluation in excess of 0 percent for her service-connected lumbar DDD with spondylolisthesis prior to December 18, 2014, and in excess of 40 percent from that time. Turning to the evidence of record, the Veteran submitted statements in April 2010 and February 2011 attesting that she has difficulty standing, sitting, or laying down for a long period time. The Veteran reported walking with a limp, and the need for over the counter pain medications on a daily basis for pain. In May 2010, a statement was received from D. S., who stated he has known the Veteran since 2003, and since that time she has complained about her back. Mr. S. reported rubbing icy-hot on the Veteran's back to help alleviate some of her pain. A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service treatment records show that the Veteran was seen for low back complaints. In May 2010 a VA examination was provided through QTC services, in Dunwoody, Georgia. The Veteran had full normal range of motion without evidence of painful motion. There was no evidence of radiating pain with movement, no muscle spasm, no tenderness, no guarding of movement, and no weakness or reduction in range of motion with repetition. The Veteran's posture and spinal curvature were normal. The Veteran walked with a slightly decreased weight on the left leg. X-rays were read as negative and neurological testing was normal; there were no abnormal findings. There was no objective evidence of painful or limited motion of the lumbar spine. The Veteran reported having limitation in walking because of pain, and that on average she can walk 2 miles. The Veteran denied bowel or bladder problems. The Veteran denied fatigue, spasms, paresthesia and weakness. The Veteran reported pain which travels down her legs. The pain is relieved by over the counter medication. The Veteran reported that during flare ups she experiences limitation of motion which causes her to move slower than usual. The Veteran was not undergoing any treatment at that time for her condition. In the past 12 months the Veteran had not suffered any incapacitating episodes. She has not suffered a bone infection. The Veteran's gait was normal, and she walked with a slightly decreased weight on her left leg. Upon examination, there was no evidence of any abnormal weight bearing or breakdown. The Veteran did not require any assistive device for ambulation. On examination the range of the thoracolumbar spine was within normal limits. After repetitive testing, range of motion was within normal limits. The joint function of the spine was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. On neurological examination, there were no sensory deficits from L1-L5. The examination of the sacral spine revealed no sensory deficits of S1. There was no lumbosacral motor weakness. The right lower extremity reflexes revealed knee jerk + 1 and ankle jerk 2+. X-rays were obtained at St. Joseph's Hospital, the results being normal plain films of the thoracic spine, and normal plain films of the lumbar spine. The examiner concluded that the Veteran's condition of lumbar DDD with spondylolisthesis was currently in a state of quiescence. Records from WellStar Cobb Hospital from January 2009 were reviewed, which reveal the Veteran was seen for right sided chest pain, which became worse upon inspiration. These records make no mention of or diagnosis of a spinal or back related condition. In December 2014, the Veteran underwent a VA examination provided through QTC Services. The examination revealed range of motion to be: flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The examiner reported evidence of pain during the range of motion. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. The Veteran had functional loss and/or functional impairment of the thoracolumbar spine. With regard to the Mitchell issues, there were complaints of pain, and after repetitive use, the Veteran had less movement than normal, weakened movement, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing or weight-bearing. The Veteran had localized tenderness, pain to palpation for joints and or soft tissue of the thoracolumbar spine. The Veteran had guarding or muscle spasms of the thoracolumbar spine, which result in abnormal gait. Muscle strength testing revealed hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension all with normal limits. There was no evidence of muscle atrophy. Deep tendon reflex testing was normal for the right and left knee and ankle. The Veteran had radicular pain, and service connection for radiculopathy of the right and left lower extremities was granted in the March 2015 rating decision, and is discussed below. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition, i.e. there was no evidence of bowel or bladder problems, or pathologic reflexes. The Veteran did not have intervertebral disc syndrome or incapacitating episodes. The Veteran did not utilize assistive devices. The impact of the thoracolumbar spine condition on the Veteran's ability to work was difficulty with duties involving prolonged sitting, standing, twisting, bending, heavy lifting or extensive walking. The Veteran's gait was slow and deliberate due to back pain and spasms. There were contributing factors of pain, weakness, fatigability and/or incoordination, and there was additional limitation of functional ability of the thoracolumbar spine during flare ups or repeated use over time. The degree of range of motion loss during pain on use or flare ups was approximately 5 degrees in either direction. At the August 2015 Board hearing, the Veteran testified that she experiences radiating pain. The Veteran testified that from the time she wakes to the time she sleeps she experiences pain. As documented above, prior to December 2014, the record indicates that at the May 2010 VA examination, the Veteran's range of motion was within normal limits. There was no evidence of pain. Based upon the Veteran's service treatment records, the examiner diagnosed the Veteran with lumbar DDD with spondylolisthesis, with no evidence of functional impact. Prior to December 2014, the evidence of record is void for any abnormalities in spinal function. At no time prior to December 18, 2014, is there evidence showing the Veteran to have forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height for a 10 percent rating. In light of the Veteran's subjective complaints and objective evidence of abnormal working movement of the body ("she walked with a slightly decreased weight on her left leg"), however, the Board finds that she is entitled to at least the minimum rating for the joint involved. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1 (2011); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, prior to December 18, 2014, a rating of 10 percent, but no higher, is warranted. The Board finds that from December 18, 2014, the criteria for a 40 percent rating and no higher for the service-connected lumbar degenerative disc disease with spondylolisthesis have been met. Consistent with a 40 percent rating, at her December 18, 2014 VA examination, the Veteran presented with symptoms of back pain, which she described were so severe that she could not walk, sit or lay down without pain. The lowest flexion on exam was found to be 30 degrees (with pain), with no findings of ankylosis, consistent with a 40 percent rating. For a rating in excess of 40 percent, there must be a finding of unfavorable ankylosis of the entire thoracolumbar spine, and there were no such findings. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the motion found by the VA examiner (including findings of no ankylosis), the Board finds that the Veteran does not have ankylosis of the thoracolumbar spine. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. As the December 2014 examination demonstrated, the Veteran had pain with forward flexion at 30 degrees and an anticipated additional loss of 5 degrees during flare-ups. To be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine. Even with the limitations put on the Veteran's spine as evidenced by the decreased ability to perform normal working movements of the body, there is no evidence of ankylosis, and therefore the next higher evaluation is not warranted. As such, an evaluation in excess of 40 percent is not warranted. Thus, when considering the Veteran's increased symptom of pain in December 2014, the Board concludes that this evidence more nearly approximates a showing of forward flexion to 30 degrees or less with the earliest date being the date of examination, December 18, 2014. A 40 percent rating, but not higher, for the Veteran's lumbar DDD with spondylolisthesis is warranted for the period beginning December 18, 2014. Higher evaluations are also available under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes. The Board notes that under Diagnostic Code 5243, 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. However there is no evidence of record that the Veteran has been incapacitated at any time. In fact, the Veteran reported at the Board Hearing that while difficult to do so, she continued to report for work despite her pain. Also, according to the most recent December 2014 VA examination, the Veteran did not report experiencing incapacitating episodes, or being under the care of a physician, or having been prescribed bed rest by a physician. As such, an evaluation due to incapacitating episodes would not result in an evaluation higher than those already assigned herein. Based on the above, the Board finds that a rating of 10 percent, but not higher, is warranted from September 3, 2009 to December 17, 2014, and that a rating of 40 percent, but not higher, from December 18, 2014 is warranted thereafter. In so finding, the Board notes that the Veteran is competent to report on symptoms. Her competent lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the actual nature of her disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. IV. Radiculopathy of the Left and Right Lower Extremities In March 2015, the RO granted a separate evaluation for each lower extremity under 5243-8520. At the August 2015 Board hearing, the Veteran testified that she experiences radiating pain. The Veteran testified that from the time she wakes to the time she sleeps she experiences pain. In May 2010, a VA examination was provided through QTC services, in Dunwoody, Georgia. The Veteran reported pain which travels down her legs. The neurological examination revealed no sensory deficits from L1-L5. The examination of the sacral spine revealed no sensory deficits of S1. There was no lumbosacral motor weakness. The right lower extremity reflexes revealed knee jerk + 1 and ankle jerk 2+. The left lower extremity reflexes revealed knee jerk + 1 and ankle jerk 2+. The lower extremities showed no signs of pathologic reflexes. The examination revealed normal cutaneous reflexes. There was no evidence of nerve root involvement, or non-organic physical signs. With regard to the spine, the Veteran had full normal range of motion without evidence of painful motion, and the examiner concluded the Veteran's condition of lumbar DDD with spondylolisthesis was in a state of quiescence. X-rays were read as negative and neurological testing was normal, there were no abnormal findings. The Veteran denied fatigue, spasms, paresthesia and weakness. In December 2014, the Veteran underwent a VA examination provided through QTC Services. The examination revealed the Veteran had radicular pain, and straight leg testing was positive. With regard to the right lower extremity, with regard to experiencing constant pain, intermittent pain, paresthesia's and/or dysesthesias, and numbness, the severity was moderate. With regard to the left lower extremity, with regard to experiencing constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness, the severity was severe. The overall severity of radiculopathy on the right side is moderate, and on the left side is severe. The nerve roots involved are: right and left L4/L5/S1/S2/S3. Based on the evidence of record, the Board finds that prior to December 18, 2014, a compensable rating for radiculopathy of the lower extremities is not warranted. Though in May 2010, the Veteran stated she experienced pain which travelled down her legs, there was no indication of sensory deficits, and the Veteran's spine condition was in a state of quiescence. There was no diagnosis of radiculopathy on examination in May 2010. The neurological exam was noted as normal. As noted, under the General Rating Formula, the disability ratings are assigned regardless of "whether or not [pain] radiates." Here, there is no medical evidence that shows that the Veteran was entitled to a separate compensable rating for radiating pain during this period. The Veteran is competent to report on symptoms. Her competent lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the nature of the right and left leg impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. The Veteran was first diagnosed with radiculopathy in December 2014, hence a rating for radiculopathy prior to December 18, 2014, is not warranted. The Board finds that since December 18, 2014, the Veteran's radiculopathy of the right lower extremity more nearly approximates incomplete moderate paralysis of the sciatic nerve. The Board also finds that since December 18, 2014, the Veteran's radiculopathy of the left lower extremity more nearly approximates incomplete moderately severe paralysis of the sciatic nerve. "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). On examination in December 2014, the Veteran reported radiating pain. The Veteran had positive straight leg raises bilaterally, which is indicative of radiculopathy. Sensory examination was normal for the bilateral lower extremities. On reflex examination, all deep tendon reflexes were normal. There was no evidence of muscular atrophy, and the muscle strength testing of each lower extremity was normal. The right lower extremity symptoms were moderate with regard to constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. On examination of the left lower extremity, with regard to constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness, the severity was severe. The severity of radiculopathy on the right side is moderate, and on the left side it is severe. The nerve roots involved are: right and left L4/L5/S1/S2/S3. There were no other findings of neurologic abnormalities, such as bowel or bladder problems or pathologic reflexes. Therefore, based on the foregoing, the Veteran is entitled to a moderate evaluation, 20 percent, for the right lower extremity radiculopathy, as there was consistent evidence of radiculopathy of a moderate nature. With regard to the left lower extremity, there was evidence of severe radiculopathy, warranting a 40 percent evaluation for moderately severe incomplete paralysis. The next higher evaluation of 60 percent is not warranted as it requires "marked muscular atrophy" which the Veteran does not exhibit in either lower extremity. The Board thus finds that effective December 18, 2014, the Veteran's right lower extremity sciatic nerve paralysis was moderate in nature, and thus a 20 percent rating is warranted. With respect to the left lower extremity, the Board finds that effective December 18, 2014, the Veteran's left lower extremity sciatic nerve paralysis was moderately severe in nature, and thus a 40 percent rating is warranted. V. Other Considerations Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). Pursuant to 38 C.F.R. § 3.321(b), ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the scheduler evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned scheduler evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-scheduler rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has carefully compared the level of severity and symptomatology of the Veteran's radiculopathy of the left lower extremity and radiculopathy of the right lower extremity with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms that are not addressed by the rating schedule. The Veteran has not described any exceptional or unusual features of her radiculopathy of the right or left lower extremities. The Board is aware of the Veteran's complaints as to the effects of her service-connected lumbar spine disability on her activities of work and daily living. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran generally complains of pain and limitation of motion. Her 10 then 40 percent rating contemplates the impairment of function caused by painful and limited motion. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the back and radiculopathy of the lower extremities provide disability ratings on the basis of limitation of motion and incapacitating episodes of the back, and paralysis of the sciatic nerve. See 38 C.F.R. § 4.71a, Diagnostic Code 5242; 38 C.F.R. § 4.124a, Diagnostic Code 8524. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, as the Veteran's disability picture is contemplated by the rating schedule, the schedular criteria are adequate and referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). Furthermore, the disability picture is not so exceptional to warrant referral even when the disabilities are considered in the aggregate. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 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, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. 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. Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. Here, the issue of TDIU has not been raised by the record. The Veteran continues to work, and has at no time alleged she is unable to work due to her service-connected disabilities. As the issue has not been raised by the record, no further discussion is required at this time. ORDER A 10 percent evaluation for lumbar degenerative disc disease (DDD) with spondylolisthesis, prior to December 18, 2014, is granted subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating for lumbar degenerative disc disease (DDD) with spondylolisthesis in excess of a 40 percent disability from December 18, 2014 is denied. Entitlement to a compensable rating for radiculopathy of the left lower extremity prior to December 18, 2014, is denied. Entitlement to a compensable rating for radiculopathy of the right lower extremity prior to December 18, 2014, is denied. A 40 percent evaluation for radiculopathy of the left lower extremity is granted from December 18, 2014, subject to the law and regulations governing the payment of monetary benefits. A 20 percent evaluation for radiculopathy of the right lower extremity is granted from December 18, 2014, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs