Citation Nr: 1614683 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 09-21 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine, from January 15, 2008 until February 28, 2009. 2. Entitlement to a rating in excess of 10 percent from March 1, 2009 for degenerative disc disease of the lumbar spine, until March 6, 2012. 3. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, from March 7, 2012, with separate 10 percent ratings each for lumbar radiculopathy of the right and left lower extremities. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 2004 to January 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). A March 2008 rating decision granted service connection for degenerative disc disease of the lumbar spine with a rating of 10 percent effective January 15, 2008 under Diagnostic Code 5243. A June 2009 rating decision found clear and unmistakable error in the evaluation of the degenerative disc disease of the lumbar spine and granted a retroactive 20 percent rating from January 15, 2008. The 20 percent rating was based on flexion of the lumbar spine limited to 60 degrees with total range of motion of 120 degrees. A 10 percent evaluation was assigned from March 1, 2009. A July 2009 rating decision denied entitlement to a TDIU. In an April 2012 rating decision, the RO increased the disability rating for degenerative disc disease of the lumbar spine which was 10 percent disabling to 20 percent effective March 7, 2012. Service connection was also granted for lumbar radiculopathy of the right and left lower extremities which were each rated as 10 percent effective March 7, 2012. The Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status. The Veteran testified before the undersigned at a February 2016 Board hearing. He also waived initial RO jurisdiction over additional evidence added to the record. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine results in, at worst during the entire appeal period, flexion to 40 degrees; there is no ankylosis of the thoracolumbar spine; there were not incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Prior to March 7, 2012, the Veteran had mild lumbar radiculopathy/sciatic nerve impairment of the right and left lower extremities, respectively. 3. Prior to March 7, 2012, the Veteran had moderate lumbar radiculopathy/sciatic nerve impairment of the right and left lower extremities, respectively. 4. On February 12, 2016, at his Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his appeal as to the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for the entire appeal period for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5243-5242 (2015). 2. A 10 percent rating, but no more, is warranted for lumbar radiculopathy/sciatica of the right sciatic nerve from January 15, 2008 until March 6, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2015). 3. A 10 percent rating, but no more, is warranted for lumbar radiculopathy/sciatica of the left sciatic nerve from January 15, 2008 until March 6, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2015). 4. A 20 percent rating, but no more, is warranted for lumbar radiculopathy/sciatica of the right sciatic nerve from March 7, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2015). 5. A 20 percent rating, but no more, is warranted for lumbar radiculopathy/sciatica of the left sciatic nerve from March 7, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2015). 6. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to a TDIU have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was provided VCAA notification in August 2008 which addressed the higher rating matter. The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In addition, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent the Veteran an SOC and supplemental statement of the case (SSOC) that contained, in pertinent part, the criteria for establishing entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating for Low Back Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, he or she should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating 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. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the General Rating Formula as applicable to the Veteran's spine disability, 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 of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. For the cervical spine, there must be forward flexion to 30 degrees, but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees, but not greater than 225 degrees. There may also be 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 if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; if forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, if there is 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 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 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; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3) states that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors note the result of the disease or injury of the spine, the range of motion of the spine in 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. Note (4) indicates that each range of motion measurement should be rounded to the nearest 5. Note (5) provides that 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 of more of the following: difficulty walking because of the 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. Note (6) provides that VA should separately evaluate disability of the thoracolumbar and cervical spine segments, except whether there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the criteria governing disabilities of the spine, intervertebral disc syndrome is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. This formula provides a rating of 20 percent for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Note (1). in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. In February 2008, the Veteran reported having chronic back pain after a May 2007 microdiskectomy. On evaluation, the Veteran was slow to lie supine and on arising. He had stiffness on forward bending. There was no palpable muscle tension in paraspinals. There was no vertebral tenderness to percussion or palpation. The Veteran was also afforded a VA examination in February 2008. At that time, the Veteran reported daily low back pain. On examination, straight leg raising was positive. There was no ankylosis or fracture of a vertebral body. The Veteran was able to flex to 60 degrees, extend to 10 degrees, laterally rotate to 15 degrees, and laterally bend to 10 degrees. Pain was noted at those points. The low back pain was noted to severely impact the Veteran's ability to do chores. There were no significant effects on employment. In June 2008, the Veteran continued to report low back pain, even when just sitting down. The pain radiated over the right thigh and down to the knee. A magnetic resonance imaging (MRI) from the prior July 2007 showed a bulging disc at L5-S1. In June 2008, the Veteran underwent an MRI. The results revealed changes at L5-Sl and posterior soft tissues consistent with history of microdiscectomy. There was slight disc protrusion at L5-S1. Enhancing scar tissue surrounded the thecal sac and right nerve root as well. In October 2008, the Veteran reported radiating low back pain. In February 2009, the Veteran was afforded another VA examination. The Veteran reported that he first began to have low back pain while on deployment in 2006. He stated that the pain progressed to include burning and sharp pain that radiated down his right leg. He was evaluated with an MRI and by neurosurgery related to his symptoms and underwent a microdiskectomy in May 2007. He stated he noted improvement after the surgery. However, one month later while mopping a floor he felt a popping sensation and again developed back pain that radiated down both legs. He was again evaluated and was told that he had protrusion of the L4-5 disc but because of scar tissue and location he was not a surgical candidate. He was then medically boarded out of the military service. Since discharge, he had continued to have low back pain that he described as tightness with spasms. The greater pain was that which radiated down his bilateral legs to his knees that was constant and at times this radiated to his great toes bilaterally. He described this pain as a burning pain. He rated his daily intensity level as 6-7/10. He currently was taking ibuprofen over the counter two times per week and tramadol 50mg during periods of flare up which were usually 3-4 times per month. He stated that these medications helped his low back pain but really did not do anything for the pain that radiated down his legs. He reported that the flare-up severity was 9/10. The precipitating event was usually not known and these would last anywhere from eight to forty-eight hours. He alleviated the flare-up with the medications as mentioned and also massage. He stated that when he had a flare-up, he was limited to walking only a few feet within his house. He stated that in general, any immobility, prolonged standing and prolonged walking aggravated his back pain. He denied any associated features related to the low back pain. He walked unaided. He admitted to having a cane but stated he did not use a cane, crutches or walker for ambulation. He stated that he did have a back brace that he wore during flare-up. He was not sure how far he could walk but noted that he could not walk for a prolonged period of time, but was not sure how long this would be. He denied being unsteady on his feet of having a history of falls. He denied any other trauma or injury to the low back. He had surgery in May of 2007. He stated that he was not limited in any activity of daily living, but stated he must stretch first in the morning and he stated that he felt that his back pain slowed down his pace in bathing, grooming, dressing etc. He reported that his usual occupation was in construction. He stated that he had a job in construction but he sat behind a desk planning the construction. In December 2008, he was laid off from this job. He had been looking for work since then but felt because of his back disability, he had not been hired. Recreationally, he stated that his back pain interfered with sexual activity, bike riding, and riding his motorcycle. Physical examination revealed that his gait and posture were normal. The Veteran was able to get onto the examination table without difficulty. Spinal curvature was normal. There was tenderness of the bilateral paravertebral muscles to palpation. No spasms were noted. Forward flexion was 0 to 85 degrees with pain beginning at 40 degrees, extension backward was 0 to 30 degrees with pain at 30 degrees, left and right lateral flexion was 0 to 30 degrees without pain, right and left lateral rotation was 0 to 30 degrees without pain. With repetition there was no functional impairment noted. Neurological examination revealed that motor strength of the bilateral lower extremities was 5/5. There was normal muscle tone. No muscle atrophy was present. Sensation to the bilateral lower extremities was intact to temperature, vibration, and light touch. There was a negative straight leg test bilaterally and a negative Lasegue's sign bilaterally. Patella and Achilles deep tendon reflex was 2+ and symmetrical bilaterally. There was no Babinski. The prior MRI results were reviewed. The diagnosis was degenerative disc disease of the lumbar spine with intermittent nerve root irritation of the bilateral lower extremities. Private August to September 2009 records (SSA) revealed that the Veteran reported low back pain and participated in therapy. Moderate loss of motion and stiffness were noted, but the exact degrees of motion were not indicated. In December 2009, the Veteran reported bilateral hip pain and inner thigh pain to the knee. It was noted that current x-rays showed normal lumbar lordosis. Alignment was preserved. Vertebral body heights were normally maintained. The intervertebral disc height were preserved, with, the exception of L5-S1 where there was also slight disc protrusion. There were mild changes of disc desiccation at this level. The conus terminated appropriately at the level of L.1-2. In July 2010, the Veteran continued to complain of radiating pain and underwent nerve testing which revealed no left or right lumbosacral radiculopathy by needle EMG, but purely sensory radiculopathy was not ruled out. In July 2010, the Veteran was seen for complaints of low back pain. He described the pain as burning, throbbing, aching, and shooting. The pain was worsened by walking, standing, bending, sitting, and lifting. The pain radiated into the groin, medial thighs, and off and on into calves. The Veteran also indicated that he had paresthesias in both lower extremities. In April 2011, the Veteran reported having low back pain radiating down the bilateral sides and into the groin or abdomen. He also described having muscle spasms in his buttocks. The Veteran was given Percocet for pain. In May 2011, the Veteran underwent a discectomy at L5-S1. The Veteran attended physical therapy and his leg pain dissipated. A May 2011 MRI revealed (1) severe compression of the Sl-2 descending nerve root, at the left lateral recess, between the ipsilateral facet joint and the posterior disc margin from L5-S1 disc herniation; (2) bilateral, moderate intraforaminal nerve root compression at L5-S1 with moderate LS-S1 disc desiccation; (3) mid lumbar fact arthritis, most pronounced at L3-4 and L4-5; and (4) mild apex bowing of the lumbar spine. In March 2012, the Veteran was afforded a VA examination. It was noted that the Veteran had degenerative lumbar disc disease with lumbar radiculopathy. The Veteran was able to flex to 85 degrees with pain at 80 degrees, extend to 20 degrees with pain at that point, laterally rotate to 30 degrees with pain at 20 degrees, and laterally flex to 20 degrees with pain at that point. The Veteran was able to perform repetitive motion without additional limitations. His back disability also interfered with sitting, standing, and weight bearing. The Veteran had guarding or muscle spasm of the thoracolumbar spine which resulted in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Muscle strength and reflexes were normal. Straight leg raising was normal. The Veteran had mild sciatic nerve impairment. There were no other neurological findings. Although the Veteran had intervertebral disc disease, he did not have incapacitating episodes. Due to the low back condition, there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. It was noted that for purposes of this examination, the diagnosis of intervertebral disc syndrome and/or radiculopathy could be made by a history of characteristic radiating pain and/or sensory changes in the legs. It was indicated that the Veteran would have difficulty at work if he had to sit or stand too long. The examiner indicated that the Veteran could have sensory changes due to his low back disability without motor changes. In an April 2012 rating decision, the RO granted an increased rating for the low back disability of 20 percent effective March 7, 2012, the date of the VA examination. In addition, service connection was granted for lumbar radiculopathy, right lower extremity, rated as 10 percent effective March 7, 2012 and for lumbar radiculopathy, left lower extremity rated as 10 percent effective March 7, 2012. In July 2012, the Veteran was treated by Dr. Z.M. He noted that a May 2011 MRI revealed left-sided disc herniation at L5-S1. Neurological examination revealed normal muscle strength in both lower extremities. Sensory examination revealed diminished sensation involving the left lateral leg as well as the dorsal foot. Deep tendon reflexes were intact, except for the left Achilles which was 1/2. Straight leg raising was positive on the left. The diagnosis was recurrent herniated nucleus pulposus L5-S1 for which the Veteran then underwent a discectomy in May 2011 and later developed a wound infection. In March 2014, the Veteran reported to the emergency room for chronic low back pain with radiation down the right leg. The next month, motor and neurological evaluation revealed normal strength and tone. In December 2014, the Veteran was seen for complaints of right leg pain from the thigh shooting into the foot. This was aggravated by walking and triggered by his performing recent work on moving to another place. There was not incontinence. The Veteran was diagnosed with sciatica. Muscle strength was preserved. In June 2015, the Veteran testified at a hearing at the RO. The Veteran described having pain, stiffness, and being unable to lift heavy objects. He also could not engage in prolonged standing, sitting or running. He said that he taught 4th grade, but could not do that while on pain medication. The Veteran related that he had radiating leg pain down his legs. He said the pain was not severe, but he was uncomfortable at times. His wife testified that the Veteran required a lot of rest and downtime at home. In August 2015, the Veteran was afforded a VA peripheral nerves examination. Pain and paresthesias was noted to be moderate in both lower extremities. Muscle strength and deep tendon reflexes in the knees and ankles were normal. Sensory examination in the lower extremities was normal. There were no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) attributable to peripheral neuropathy. Gait was normal. The examiner indicated there was moderate incomplete paralysis of the sciatic nerve. The impairment of the sciatic nerve prevented physical labor. The VA examiner indicated that the Veteran did not have erectile dysfunction due to his back disability. The examiner confirmed that the Veteran had radicular pain from back to buttocks, hips, groin, thighs and legs. In October 2015, the Veteran was afforded another VA examination. It was noted that the Veteran had intervertebral disc disease with flare-ups of pain. Range of motion testing revealed flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees; and right and left lateral rotation to 30 degrees. Pain and repetitive motion did not further limit function. There was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The Veteran had muscle spasm, but not resulting in abnormal gait or abnormal spinal contour. Muscle strength and deep tendon reflexes were normal. Sensory examination was normal. Straight leg raising was negative. Pain was mild and there was mild radiculopathy on the right only. There was no ankylosis. The Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran had a lumbar midline scar which was 5 centimeters by 1 centimeter and was not painful or unstable, had a total area equal to or greater than 39 square cm (6 square inches), or was located on the head, face or neck. The examiner opined that although the Veteran would have difficulty performing heavy physical work requiring lifting more than 20 pounds, he could perform sedentary desk type work. Also, in October 2015, the Veteran experienced low back pain after performing yard work. Low back pain with radiculopathy was shown on examination. A December 2015 MRI revealed disc bulge and posterior osteophytes at L5-S1 with mild to moderate bilateral facet arthrosis and moderate bilateral lateral recess and foraminal stenosis. The record shows that the Veteran subsequently missed 5 days of work. In February 2016, the Veteran was seen for complains of low back pain which radiated into the bilateral hips. He described the pain as moderate and shooting, burning, aching, throbbing, sharp, and dull, pressure, and pinching in nature. Pain score ranged from 6/10 to 10/10. He stated that the pain affected sleep, ambulation, and activities of daily living (ADL's) and the pain was better in the night. The pain was constant in nature. He had no additional complaints. He denied numbness. Aggravating factors included: standing and walking. Alleviating factors include: lying down, heat, and medications. He denied knowledge of similar or identical problem in the past. An MRI of the lumbar spine revealed a disc bulge and posterior osteophyte at L5-S1 with bilateral facet arthrosis. The patient had a history of lumbar spine surgery before. The Veteran's previous treatment included the following: medication management, physical therapy, injection therapy, and surgical intervention He had been taking medications to help with the pain and these had helped somewhat. Physical therapy had not helped. The Veteran underwent surgery in 2011 and had noticed some improvement. The Veteran had epidural steroid injections in the past that did not help very much. Currently, he managed the pain with medications for pain. He had a lumbar paravertebral facet joint injection. In February 2016, the Veteran testified at a Board hearing regarding his low back problems. He indicated that he took medication, but the low back disability interfered with work and he needed to rest. In addition, it interfered with his ability to care for his daughter, such as bathing her. He related that he had pain and spasms and was never really pain-free. He indicated that had changed jobs and altered his activities to accommodate his low back disability. An Initial Rating in Excess of 20 percent for Degenerative Disc Disease of the Lumbar Spine, from January 15, 2008 until February 28, 2009 In order to warrant a higher rating for this time period, the evidence must show forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Board notes that the Veteran did not have ankylosis of the spine and his flexion was greater than 30 degrees. Pain limited flexion to 40 degrees at worst including considering DeLuca criteria. Moreover, there were not incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board notes that the Veteran had neurological complaints of radiating pain down both legs. An existing 2007 MRI had revealed a bulging disc at L5-S1 which was confirmed on a June 2008 MRI which showed slight disc protrusion. The complaints of sciatica were wholly sensory in nature with no motor impairment. On examination, sensation itself was intact to temperature, vibration, and light touch. Straight leg test bilaterally and Lasegue's sign bilaterally were negative. As such, the Board finds that while there was bilateral neurological impairment of the sciatic nerve to both lower extremities, the impairment was no more than mild. Accordingly, separate 10 percent ratings for neurological impairment of the sciatic nerve are warranted for the right lower extremity and for the left lower extremity each, under Diagnostic Code 8520. Otherwise, the Veteran did not have other neurological impairment, such as bowel or bladder incontinence. A Rating in Excess of 10 Percent From March 1, 2009 for Degenerative Disc Disease of the Lumbar Spine, until March 6, 2012 In order to warrant a higher rating for this time period, the evidence must show forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees. The RO assigned a 10 percent rating, rather than continuing the 20 percent rating since the February 2009 VA examination showed forward flexion to 85 degrees and total range of motion of the lumbar spine to 235 degrees; however, that examination showed, as noted above, that pain actually limited flexion to 40 degrees which meets the criteria for a 20 percent rating. There are no range of motion findings during this period in conflict with the February 2009 VA examination. Thus, a 20 percent rating, but no higher is warranted based on limited flexion. A higher rating based on incapacitating episodes is not warranted since there were not incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. In addition, the records also continued to show that the Veteran had slight disc protrusion of L5-S1 as well as mild changes of disc desiccation at this level. The Veteran continued to report radiating pain and paresthesias in both lower extremities which was wholly sensory. Thus, the separate 10 percent ratings, but no higher, for impairment of the sciatic nerve is warranted for the right lower extremity and for the left lower extremity each, under Diagnostic Code 8520. Otherwise, the Veteran did not have other neurological impairment, such as bowel or bladder incontinence. A Rating in Excess of 20 Percent for Degenerative Disc Disease of the Lumbar Spine, from March 7, 2012, with Separate 10 percent Ratings Each for Lumbar Radiculopathy of the Right and Left Lower Extremities For the low back, in order to warrant a higher rating for this time period, the evidence must show forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Board notes that the Veteran did not have ankylosis of the spine and his flexion was greater than 30 degrees. Flexion was limited at worse to 60 degrees including considering DeLuca criteria. Moreover, there were not incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. However, with regard to the sciatic nerve impairment, higher 20 percent ratings for each lower extremity are warranted. On the March 2012 examination, the examiner indicated that the Veteran had mild sciatic nerve impairment. However, as of that date, there was an overall increase in severity of the nerve impairment with an increase in symptoms, including positive straight leg raising. This increase was confirmed on the August 2015 examination which indicated moderate nerve impairment. The records during the time period showed that the impairment continued to be wholly sensory in nature with normal motor function, normal strength and tone, and normal deep tendon reflexes in the knees and ankles. Nonetheless, the reported radicular pain from back to buttocks, hips, groin, thighs and legs was documented and confirmed. Since the impairment was wholly sensory in nature, 20 percent ratings for each side for moderate impairment are the highest applicable ratings. Otherwise, the Veteran did not have other neurological impairment, such as bowel or bladder incontinence. Conclusion In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 20 percent rating based on limitation of flexion of the low back for the entire appeal period. In addition, the evidence supports a 10 percent rating for lumbar radiculopathy/sciatica of right lower extremity and a 10 percent rating for lumbar radiculopathy/sciatica of the left lower extremity, prior to March 7, 2012. As of March 7, 2012, the evidence supports a 20 percent rating for lumbar radiculopathy/sciatica of right lower extremity and a 20 percent rating for lumbar radiculopathy/sciatica of the left lower extremity. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's low back disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe the disability symptomatology. The Veteran has sought emergency room treatment, but not on a frequent basis. In addition, while there is a negative impact on physically demanding employment, the Veteran has been determined to be able to otherwise sustain employment and is in fact employed. The schedular rating criteria specifically include tenderness, spasm, and any and all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine. 38 C.F.R. § 4.71a, Plate V. In addition, impairment of function involving prolonged standing, sitting, walking, bending, lifting, disturbance of locomotion, or instability of station, has been considered by the Board and is contemplated under the schedular rating criteria. See 38 C.F.R. § 4.45 (disturbance of locomotion, instability of station, and interference with sitting, standing, and weight-bearing are considered as functional limitation under the schedular rating criteria). Overall, such noted symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria). Therefore, the Board finds that the record does not reflect that the lumbar spine disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis. TDIU Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has withdrawn his appeal as to the issue of entitlement to a TDIU and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to a TDIU and it is dismissed. (Continued on the next page) ORDER A 20 percent rating, but no higher, for the entire appeal period for degenerative disc disease of the lumbar spine is granted, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent rating, but no more, for lumbar radiculopathy/sciatica of the right sciatic nerve from January 15, 2008 until March 6, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits A 10 percent rating, but no more, for lumbar radiculopathy/sciatica of the left sciatic nerve from January 15, 2008 until March 6, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. A 20 percent rating, but no more, for lumbar radiculopathy/sciatica of the right sciatic nerve from March 7, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. A 20 percent rating, but no more, for lumbar radiculopathy/sciatica of the left sciatic nerve from March 7, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. The appeal as to entitlement to a TDIU is dismissed. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs