Citation Nr: 1637665 Decision Date: 09/26/16 Archive Date: 10/07/16 DOCKET NO. 07-04 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial scheduler rating greater than 10 percent for service-connected left lower extremity radiculopathy. 2. Entitlement to a higher initial extra-schedular rating for service-connected left lower extremity radiculopathy. 3. Entitlement to a higher extra-schedular rating for service-connected intervertebral disc syndrome (IVDS) and herniated disc of the lumbar spine. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active military service from November 1977 to April 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2006 and August 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2009, the Board issued a decision denying the claim for a disability rating in excess of 40 percent for lumbar spine IVDS and denying an initial disability rating in excess of 10 percent for left lower extremity radiculopathy. The Board denied both of these issues on a schedular basis, and also determined that an extra-schedular referral under 38 C.F.R. § 3.321(b) was not appropriate. The Veteran appealed the Board's August 2009 decision to the U. S. Court of Appeals for Veterans Claims (Court). Pursuant to a July 2011 Memorandum Decision, the Court affirmed the Board's denial of an increased disability rating greater than 40 percent for IVDS of the lumbar spine on a schedular basis. However, the Court also vacated the Board's decision as to the following issues: (1) entitlement to an initial schedular rating greater than 10 percent for left lower extremity radiculopathy; (2) entitlement to an initial extra-schedular rating greater than 10 percent for left lower extremity radiculopathy; and (3) entitlement to an extra-schedular rating greater than 40 percent for IVDS and herniated disc of the lumbar spine. The Court remanded these issues to the Board for further development, to include adjudication of the raised issue of entitlement to TDIU. In April 2012, the Board remanded the aforementioned issues for further development. The Board directed that any additional relevant treatment records, dated after July 2008, be obtained; that the Veteran be scheduled for a VA examination to assess the severity of his lumbar spine and lower extremity radiculopathy, and the effect on his occupational and social functioning, and daily activities. The Board also directed that the claims must be submitted to the Under Secretary for Benefits or Director of Compensation Service for consideration of an extraschedular evaluation under 38 CFR § 4.16(b) and/or 38 CFR. § 3.321(b). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains additional medical records and documents that are either duplicative of the evidence in VBMS or not relevant to the issues on appeal. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, the service-connected left lower extremity radiculopathy is manifested by moderate incomplete paralysis, due to symptoms such as radiating pain, numbness, and decreased sensation, with intermittent findings of impaired gait and reduced weakness, but is not manifested by moderately severe incomplete paralysis. 2. The symptomatology and impairment caused by the Veteran's service-connected left lower extremity radiculopathy is contemplated by the schedular rating criteria, which addresses all nuerological symptoms affecting impairment of the sciatic nerve, to include foot dangling and dropping, movement of muscle below the knee, flexion of the knee, muscle strength, sensation, pain, and other functional limitations. 3. The symptomatology and impairment caused by the Veteran's service-connected IVDS and herniated disc of the lumbar spine are contemplated by the schedular rating criteria, which addresses limitation of motion and all other functional impairment. 4. The Veteran's service-connected disabilities include IVDS and herniated disc, rated as 40 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; and left lower extremity radiculopathy, herein rated as 20 percent disabling. His combined service-connected disability rating is 60 percent. 5. The most probative evidence of record demonstrates that the Veteran is unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 20 percent for left lower extremity radiculopathy, on a schedular basis, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, DC 8520 (2015). 2. The criteria for an extraschedular evaluation for the service-connected left lower extremity radiculopathy have not been met. 38 C.F.R. § 3.321 (2015); Thun v. Peake, 22 Vet. App. 111 (2008). 3. The criteria for an extraschedular evaluation for the service-connected IVDS and herniated disc of the lumbar spine, have not been met. 38 C.F.R. § 3.321 (2015); Thun v. Peake, 22 Vet. App. 111 (2008). 4. Resolving any reasonable doubt in favor of the Veteran, the criteria for entitlement to TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a),(b) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). For the issues decided herein, VA provided adequate notice in letters sent to the Veteran in February 2006, March 2007, and September 2007. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran, to include private treatment records and Social Security Administration records. Additionally, the Veteran was afforded VA compensation examinations in 2006, 2008, and 2016, assessing the severity of his left lower extremity radiculopathy and IVDS and herniated disc of the lumbar spine. These examinations, taken together, are adequate as they address the Veteran's symptoms and the objective findings necessary to rate the Veteran under the relevant diagnostic codes. In addition, the AOJ obtained an opinion from the Acting Director of VA's Compensation Service concerning the Veteran's eligibility for extraschedular consideration for both the increased rating claims and TDIU. It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). In April 2012, the Board remanded the aforementioned issues for further development. The Board directed that any additional relevant treatment records, dated after July 2008, be obtained; that the Veteran be contacted for any additional treatment records; that the Veteran be scheduled for a VA examination to assess the severity of his lumbar spine and lower extremity radiculopathy, and the effect on his occupational and social functioning, and daily activities. The Board also directed that the claims must be submitted to the Under Secretary for Benefits or Director of Compensation Service for consideration of an extraschedular evaluation under 38 CFR § 4.16(b) and 38 CFR. § 3.321(b). A December 2012 letter to the Veteran requested that he provide information regarding any additional relevant treatment records. In July 2015, VA treatment records from August 2008 through March 2015 were added to the claims file. In April 2016, updated VA records were obtained and associated with the claims file. January 2016 VA examinations were obtained. An Administrative Decision was obtained in March 2016. Accordingly, there has been compliance with 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Private treatment records dated December 2004 to November 2005 were submitted by the Veteran. A December 2004 new patient examination indicated complaints of back and neck pain. The Veteran complained of chronic low back pain as well as a rare sharp pain and tingling sensation radiating down the right lower extremity. He reported that his pain interferes with his sleep and ambulation. Examination revealed decreased lumbar lordosis with fairly straight vertebral alignment. There was moderate spasm and tenderness noted with palpation of the lower thoracic and lumbar paraspinal muscles. Lower lumbar facet joints were moderate to severely tender bilaterally, and sacroiliac joints are severely tender. There was moderate tenderness to the gluteal muscles on the left. Gait was normal. Straight leg raising was negative bilaterally, and there were no sensory deficits. Additionally, deep tendon reflexes of the patella and internal hamstring were 2+ and equal bilaterally. Right calcaneus was 2+ with a left trace. Follow-up records indicated conservative treatment as well as epidural steroid injections for low back pain. In a January 2005 private record, the Veteran reported he had undergone an epidural steroid injection. He stated he had been worse after the injection for about 2 weeks, but that currently his pain was somewhat better, although worse than prior to procedure. He noted an increase to the left lower extremity numbness and pain. He has noted any changes of his activities of daily living, ambulation, or sleep. In a February 2005 private record, the Veteran reported pain of 5/10. He noted no changes to activities of daily living, ambulation, or sleep. In a March 2005 private record, the Veteran reported an improvement in his pain level. He reports more low back than lower extremity pain. His pain was aggravated by activity. On examination, the Veteran ambulated independently with a normal gait. An MRI showed L5-S1 diffuse disc bulging, retrolisthesis, and discogenic disease with spondylosis. Facet arthrosis in association with lateral components of the disc bulging encroach on both the L5 spinal nerves in the foramina with moderate to severe right and moderate left foraminal stenosis was noted. Also at L5-S1 there was a central disc herniation, which had a left predominant component that extruded, migrating inferiorly right paramedian. Both S1 nerve roots were compromised. There were also disc bulges at T11-T12, L3-L4, and L4-L5, associated with spondylosis at T11-T12, as well as facet arthrosis at L3-L4 and L4-L5. In a July 2005 private record, he reported fairly good control of his symptoms until approximately 2 weeks prior after doing yard work. He noted an increase to low back and left lower extremity. He reported intermittent left lower extremity numbness. He rated his pain at 9/10. The Veteran stated the pain radiated across his low back and down the left lower extremity to the ankle. On examination, there was a steady gait without abnormality or difficulty. There was 5/5 motor strength of the hip, knee, and ankle dorsiflexion and plantar flexion. There was a negative straight leg raise test, and 2+ lower extremity DTRs. There were sensory deficits in the left lower extremity. An October 2005 private treatment record noted the Veteran complained of severe low back pain going into the buttocks and posterior aspect of both calves. Examination revealed normal alignment and curvature of the spine. There were significant paraspinal muscle spasms and tenderness in the posterior lumbar region. Movement of the lumbar spine was severely restricted on lateral rotation and bending, and straight leg raising was positive at 70 degrees. Deep tendon reflexes and motor examination were normal. Sensory examination revealed a slight area of hyperalgesia in the S1 dermatomes. In a November 2005 private record, the examiner noted the Veteran's pain had escalated from 6/10 to 9/10 most days. The pain radiated across the lower back and down his lower left extremity with some numbness on the lateral portion of this tibia and thigh. On examination, the gait was within normal limits. There was significant facet tenderness in L4-5 and L5-S1, spinous process tenderness, decreased sensation in L5-S1 dermatome, and 2+ deep tendon reflexes (DTRs). In February 2006 VA treatment records, the Veteran reported a dull ache of the low back that radiates up the spine. The pain radiated down his bilateral legs. He reported numbness of the bilateral legs that was worse with sitting. He denied any paralysis. There were spasms in the low back muscles, and a flat back. On examination, his gait was noted to be within normal limits once he started walking, but he had stiffness in changing positions. He was able to do a one legged stand on the left for 15 seconds, but reported he had pain just standing. On straight leg raising, the Veteran said it hurt just lying there and he reported pain at the onset of the maneuver, but he was able to lift his leg to 45 degrees, at which point he first mentioned pain, and was able to go beyond that passively with no grimace. It was noted that he could go all the way down to a squat, but reported pain. Neurological examination revealed no pronator drift, no Romberg's symptoms, and heel to toe was normal. A February 2006 medical opinion from Dr. PM indicated that examination of the Veteran's spine showed no occult spinal dysgraphia markers, gait was well-balanced, and there were no focal motor paresis identified. There was hypesthesia S1, left, but sensory was otherwise intact to touch and position. Deep tendon reflexes were 1+ with no clonus and the toes were down going. The doctor noted that there was a dramatic loss of disk height and significant endplate reaction at L5-S1 which accounted for the mechanical back pain. Additionally, it was noted that the Veteran's loss of disk height leads to foraminal compression that would account for his radicular symptoms. On a VA examination in March 2006, examination of the spine revealed a straight spine with soreness in the midline and low lumbar area. Range of motion testing showed flexion to 50 degrees with pain, extension to 15 degrees, lateral flexion to 10 degrees bilaterally with pain, and rotation to 25 degrees with pain. The Veteran's reflexes were plus in the knees and ankles. Sensation was decreased in S1 on the left. The examiner provided an impression of disk symptoms with radicular pain to S1 on the left. In a May 2006 private record, he reported pain of 8/10. He noted lower extremity weakness. Upon examination, there was a normal gait. In a September 2006 VA record, the Veteran reported poor pain control. He rated is pain as 8/10. His left lower extremity ached al lth time and there was left buttock pain. He ambulated with a little bit of an antalgic gait. In a December 2006 private record, the Veteran reported his low back was slightly worse and he was getting less sleep. Upon examination, there was an antalgic gait. In a March 2007 private record, the Veteran reported leg numbness and that he was unemployed due to his back pain issues. A May 2007 private record noted that the Veteran injured the L5-S1 region to the back, and that pain had become progressively worse over the years. The Veteran stated that his pain began in the center of his back and radiated down into the buttocks and both lower extremities. He also reported numbness in the lower extremities, with both feet feeling numb. Examination revealed normal gait with no assistive devices. Range of motion in the lumbar spine was very limited and painful with flexion between 5 to 10 degrees, extension to 0 degrees, left and right lateral flexion to 10 degrees, and left and right rotation to 15 degrees. Straight leg raising was positive bilaterally at 40 degrees and strength was 4/5 in both lower extremities. The Veteran had moderate tenderness along the paraspinal region, as well as positive sciatic notch left and right. Deep tendon reflexes were 1+ in the lower extremities with no motor deficit noted. There was also diminished light touch, pain, and vibration over the ankles and feet. Diagnoses of degenerative disk disease with disk herniation; spinal stenosis with spondylosis; and facet arthrosis with bilateral lumbar radiculopathy were provided. On a VA examination in March 2008, the Veteran's current subjective complaints included constant pain which radiated across his back and down his legs, as well as complaints of stiffness and weakness. Physical examination revealed an abnormal gait due to stiffness in the lower back, and causing the veteran to favor the right leg. There was spasm in the lumbar musculature and positive tenderness in the midline and lumbar musculature. No atrophy was noted. Range of motion testing revealed flexion to 25 degrees with pain, extension to 10 degrees with pain, left lateral flexion to 10 degrees with pain, right lateral flexion to 5 degrees with pain, and right and left lateral rotation to 10 degrees with pain. The examiner noted that there was objective evidence of painful motion, spasm, weakness and tenderness as a result of the examination. Straight leg raising was negative, bilaterally. There was normal circulation and motor in the lower extremities, with no muscle wasting or atrophy. However, sensation was decreased in both lower extremities. The examiner provided diagnoses of intervertebral disc disease of the lumbar spine, and radiculopathy of the bilateral lower extremities. A June 2008 VA treatment record indicated reports of chronic low back pain. Examination revealed that the back was tender over the L2-L5 paraspinous muscles with mild spasm noted. Neurological examination was grossly intact, except for mild lower extremity weakness. A July 2008 VA treatment record indicated complaints of low back pain radiating to both lower extremities. Examination revealed intense spasticity involving the lumbar paravertebral musculature. Strength was grade 1 out of 4 in the quadriceps muscles, bilaterally, with concurrent weakness involving plantar flexion of both feet, grade 1 out of 4. Straight leg raising was negative bilaterally, but there was pain elicited with flexion, abduction and external rotation at the acetabular joints. His gait was antalgic, stooped forward, and affecting both lower extremities. A VA treatment record dated in September 2009 showed that the Veteran reported dull pain in the lower back, radiating down both legs. A February 2010 VA treatment record showed the Veteran underwent an EMG and nerve conduction study. For history, it was noted that he had chronic low backache with pain radiating towards both legs. He denied tingling, numbness, or any weakness in the legs. Neurological examination revealed full strength in the lower extremities, and sensory examination was intact to light touch, pinprick, vibration, and proprioception. Deep tendon reflexes were 2+, bilaterally, at the knees while ankle reflexes were absent bilaterally. Plantars were bilaterally down going. Clinical interpretation revealed an abnormal study, and that there was electrodiagnostic evidence for chronic bilateral mild lumbar radiculopathy involving S1, without any evidence for active denervation. A February 2011 VA treatment record showed that the Veteran reported having numbness going down both lower extremities. He had an abnormal antalgic gait, and abnormal paravertebral spasm of the lumbar region bilaterally. His muscle strength and tone were normal, and straight leg raising was positive. A May 2011 VA treatment record showed that the Veteran was transferring care to a new VA facility and reported a history of chronic lumbar pain with a radicular component with pain radiating down both legs to the toes. He reported taking OxyContin 20 mg, three tablets daily, and has also been treated with physical therapy, TENS unit, and epidural injection, without success. He has been treated with large quantities of opiates with some dependency issues. His pain that day was reported to be 8 on a scale of 10 with no medication. On examination his gait was reported as normal, and he had no palpable muscle spasms in the spine. Straight leg raising test was negative. Neurologic examination revealed normal gait and balance, with diminished deep tendon reflexes in both knees and equal bilaterally. A September 2011 VA treatment record showed that the Veteran reported no recent history of injury, and stated that the pain was chronic in the lower back, radiating to both lower extremities, and worse with any activity. He reported a constant ache throughout the lower back, and stabbing pain if he moved wrong. He also reported that his legs and feet tingled and even went numb if he sat too long, stood too long, or walked too long. He reported a pain level of 8 on a scale of 10. Also, in September 2011, he was again seen for chronic back pain, and the Veteran reported having occasional shooting pain in the thighs down to the knees. He also reported numbness in feet and that his legs also get numb, but he could not specify the location. He reported he sustained a single fall when he tried walking when his feet were asleep in 2008. He also reported fatigue he started dragging his feet and that he would trip. The exacerbating factors were listed as physical activity with bending, lifting, prolonged sitting, standing, and walking, and alleviating factors included changing positions, reclining in chair, lying in bed, medications, and rest. Objective examination revealed no tenderness to palpation of paraspinal muscle or spinous process, no noted spasms, and straight leg raising tests were negative bilaterally. Active range of lumbar motion was reported as flexion to 75 degrees, extension 20 degrees, and lateral flexion to 25 degrees bilaterally. Motor examination by manual muscle testing revealed normal findings, and muscle tone was normal. Sensory examination of the lower extremities was normal, bilaterally, to pinprick, light touch, proprioception, and vibration. Deep tendon reflexes were brisk and symmetric throughout, and plantar response was down going. He ambulated 150 feet without an assistive device, had a narrow base with good feet clearance, and could walk on tips and heels. The assessment included lumbar DDD without current signs of radiculopathy. The examiner noted that the Veteran's level of pain described did not correlate with physical findings which were benign. A June 2012 VA treatment record noted that the Veteran called stating he had an exacerbation of back pain, and had been taking high-dose opiates but these had been weaned. He complained of back pain radiating into his lower extremities, which occurred after mowing the lawn yesterday. It was noted that the Veteran had these exacerbations in the past and knew that they gradually do improve. He complained of no bladder or bowel dysfunction. In a January 2016 VA examination report, the diagnoses included herniated disc, L5, S1, and degenerative disc disease. It was noted that the Veteran had flare-ups of the thoracolumbar spine, described as pain and stiffness. He also reported functional impairment including pain and stiffness. Range of motion testing revealed flexion to 80 degrees, extension to 20 degrees, and right and left lateral flexion and rotation to 20 degrees. Functional loss was caused by decreased range of motion due to pain. There was mild tenderness to palpation of the thoracolumbar spine. He was able to perform repetitive-use testing with at least three repetitions, with additional loss of flexion. It was noted that the Veteran was being examined immediately after repetitive use over time, and that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. It was also noted that the examination was being conducted during a flare-up, and that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups. Examination also revealed the Veteran had muscle spasms and localized tenderness, not resulting in abnormal gait or abnormal spinal contour. With regard to additional factors contributing to disability, it was noted that the Veteran had less movement than normal, as well as interference with sitting and standing. No muscle atrophy was noted. Muscle strength testing revealed normal strength on right and left ankle plantar flexion and ankle dorsiflexion, and active movement against some resistance on right and left hip flexion and knee extension. On reflex examination, DTRs (deep tendon reflexes) were normal in the right and left knee and ankle, but were decreased in the right and left upper anterior thigh (L2). Straight leg raising test results were positive on the right and left, and it was noted that the Veteran had radicular pain and other signs/symptoms of radiculopathy, including mild constant pain in the right and left lower extremity, mild paresthesias and/or dysesthesias in the right and left lower extremity, and mild numbness in the right and left lower extremity. The sciatic nerve roots were involved on the right and left, and the Veteran's radiculopathy was characterized as mild. There was no ankylosis of the spine, and there were no other neurologic abnormalities or findings related to the back condition. He did have IVDS of the thoracolumbar spine, but 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. He used a cane constantly as a normal mode of locomotion, in order to assist with stability. The examiner opined that the Veteran's back condition did impact his ability to work, and described the functional impact as limited walking, standing, and sitting for prolonged periods of time. In a January 2016 VA examination report, the examiner addressed the issue of unemployability. The examiner noted review of the conflicting medical evidence and opined that it was at least as likely as not that the combined effects of the Veterans service-connected lumbar spine and lower extremity radiculopathy disabilities rendered him unable to secure and follow a substantially gainful occupation. For rationale, the examiner noted, after reviewing the medical records and conducting a physical exam, that the Veteran had severe DDD that had not been treated, but that the Veteran had sought treatment plenty of times. The examiner cited several instances of treatment, including in August 2003, October 2005, and September 2008, and noted a diagnosis of severe lumbar disease, central disc herniation of L5-S1. The examiner also noted that the Veteran was unable to settle into a comfortable position due to DDD, and that he needed a cane to ambulate across room. The examiner opined that without definitive treatment, the Veteran could not sustain an active lifestyle or maintain a productive, gainful occupation. On a VA DBQ examination of peripheral nerves dated in January 2016, it was noted that the Veteran had right lower extremity radiculopathy, S1, left, with the onset of symptoms in 1985. He reported the radiculopathy began spontaneously and had stayed the same. The symptoms attributed to radiculopathy of the right lower extremity included mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. He also had reduced muscle strength testing, 4/5, on right knee extension, but no atrophy. Reflex examination was normal. On sensory examination, it was noted that sensation was decreased in the right and left upper anterior thigh (L2). The Veteran's gait was described as normal. Testing for Phalen's sign and Tinel's sign was negative. With regard to the nerves affected, it was noted that the right and left sciatic nerves were affected, and was manifested by mild incomplete paralysis. With regard to functional impact, the examiner opined that the Veteran's peripheral nerve condition affected his ability to work, noting that the impact of peripheral neuropathy on his ability to work included limited walking, standing, and sitting for a prolonged time period. In a March 2016 Administrative Review report, the Acting Director of Compensation Service initially concluded that the findings on the most recent VA examination in 2016 did not support a 40 percent evaluation. Further, the VA examinations performed in January of 2016 to assess the lower extremity radiculopathies, were noted to include findings that the radiculopathy was mild in both lower extremities, and that the examiner stated that without definitive treatment for the lumbar spine and lower extremities the Veteran cannot sustain gainful activity. The Acting Director found that this statement by the VA examiner was not supported by the objective findings on the examinations. It was also noted that the Veteran's previous employer provided a letter indicating that he last worked in January of 2006, in shipping and receiving, and left his last job due to health problems. Thereafter, entitlement to Social Security Administration disability was established on February 1, 2006, and the Veteran's back disorder was the primary disability considered in this determination. Further, in the March 2016 report, the Acting Director noted that VA examinations were performed in 2006 and 2008, but that there was no evidence that the Veteran's lower extremity radiculopathies had been moderate or severe at any time, and that the evidence did not show any surgical procedures, ER visits, or hospitalizations due to the service-connected lumbar spine disc disease or lower extremity radiculopathies from 2006 to present. The Acting Director concluded that current medical evidence did not support a 40 percent evaluation for lumbar spine disc disease; that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. The Acting Director also concluded that the evidentiary record did not demonstrate that the symptomatology consistently associated with the service-connected lumbar spine disc disease or lower extremity radiculopathies was not wholly contemplated by the criteria utilized to assign the current and past evaluations. The Acting Director concluded that entitlement to an extraschedular evaluation for the Veteran's service connected lumbar disorder or lower extremity radiculopathies was not established for any time period, and that none of the available objective evidence supported the Veteran's contention that his service connected disabilities, or a combination of the effects of the disabilities, prevented all types of gainful activity. The Acting Director concluded that entitlement to IU for any time period was not established. III. Analysis 1. Higher Schedular Rating for Left Lower Extremity Radiculopathy Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends he should be entitled to a higher initial rating for his service connected left lower extremity radiculopathy. The record reflects that a 10 percent rating was awarded, under 38 C.F.R. § 4.124a, DC 8520 (paralysis of the effected nerve), for radiculopathy of the left lower extremity, as secondary to the service-connected IVDS and herniated disc of the lumbar spine. This was consistent with the Notes to the General Rating Formula for Diseases and Injuries of the Spine, which provides that neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code(s). 38 C.F.R. § 4.71a. DCs 8520, 8620, 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, 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. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Ratings of 10, 20, and 40 percent are assignable for incomplete paralysis that is mild, moderate, or moderately severe in degree, respectively. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" 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 38 C.F.R. § 4.124 (a), Note. Words such as "severe", "moderate", and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Board finds that the evidence of record supports a 20 percent scheduler evaluation, but no higher, as the evidence does not more nearly approximate moderately severe incomplete paralysis. Review of the objective evidence dated from 2004 through 2016, shows symptoms in the left lower extremity ranging in frequency and severity, including findings of pain radiating down in the buttocks and both lower extremities, numbness in the lower extremities, severe low back pain going into the buttocks and posterior aspect of both calves, slight hyperalgesia in the S1 dermatomes, right calcaneus at 2+ with left trace, left-sided hypesthesia Sl, deep tendon reflexes 1+, down going toes, and decreased sensation on the left. In December r2004, there were no sensory deficits and DTRs were 2+, or normal. In October 2005, DTRs and motor strength were normal, although there were sensory deficits. In February 2006, there were sensory deficits and DTRs were 1+. In March 2006, there was decreased sensation. In May 2007, there was reduced motor strength of 4/5, DTRs of 1+, and diminished sensation. In March 2008, there was decreased sensation. In June 2008, there was mild lower extremity weakness. In July 2008 there was reduced strength of the lower extremities, of 1/4. In February 2010 there was full strength of the lower extremities, intact sensation, and 2+ DTRs. In February 2011, there was normal muscle strength. In May 2011, there was diminished DTRs. In September 2011, there was normal motor strength, normal sensation. In June 2016, there was reduced muscle strength and reduced sensation, but normal reflexes. Thus, throughout the time period, there has been decreased sensation, with some periods of reduced strength and reduced reflexes. The findings also show, however, that the majority of the time period, the Veteran's gait was normal. At some medical provider visits, including in March 2008, July 2008, and February 2011 there was an antalgic or abnormal gait, but gait was normal in December 2004, February 2006, May 2007, May 2011, and January 2016. After reviewing the competent evidence of record, the Board concludes that the Veteran's symptoms of left lower extremity radiculopathy have varied, but are more closely described as moderate in degree. Although the symptoms are primarily sensory, there have, at times, been reductions in muscle strength and an abnormal gait. Although there have been instances of impaired functioning of the left lower extremity, to include times the Veteran complained of problems with walking or standing or sitting for too long, as well as instances of impairment of reflexes, muscle strength, and sensation, and his complaints of radicular pain, tingling, and numbness, overall, during the course of the appeal these findings and complaints have generally been intermittent. But on the whole, the symptoms do not more closely approximate moderate severe. See 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. Additionally, on the most recent VA DBQ in 2016, the examiner characterized the Veteran's radiculopathy as mild, including complaints of mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness, as well as minimal to no impairment of muscle strength, reflexes, and sensation. Accordingly, an initial rating in excess of 20 percent under DC 8520 is not warranted. In summary, the preponderance of the evidence reflects that the Veteran's service-connected radiculopathy of the left lower extremity has been no more than 20 percent disabling at any point during the appeal period. In that regard, the Veteran's symptoms related to his service-connected radiculopathy of the left lower extremity are at most moderate, and equivalent to no more than moderate incomplete paralysis. Consequently, the benefit-of-the-doubt rule does not apply, and the claim for an initial rating in excess of 20 percent for the service-connected radiculopathy of the left lower extremity must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Higher Extra-schedular Ratings The Board must also address whether extraschedular evaluations are warranted for the service-connected left lower extremity radiculopathy and the service-connected IVDS and herniated disc. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321 (b). The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun, 22 Vet. App. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. This task is to be performed by the RO or the Board. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms", and such factors include "marked interference with employment" and "frequent periods of hospitalization." This task is also to be performed by the RO or the Board. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step or element - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426. As noted above, in April 2012, the Board remanded this matter for the Veteran's claims to be referred to the Under Secretary for Benefits or the Director of Compensation Services for consideration of assignment of an extraschedular rating under 38 C.F.R. § 3.321 (b)(1). In March 2016, the Acting Director of Compensation Service issued a decision denying an extraschedular rating for the Veteran's service-connected left lower extremity and back disabilities. For reasons set forth below, the Board finds that the schedular ratings for the Veteran's service-connected left lower extremity radiculopathy and IVDS and herniated disc fully and adequately address and contemplate his symptoms for each disability. With regard to the service-connected left lower extremity as noted above, the Veteran's left lower extremity radiculopathy has been evaluated under DC 8520, governing impairment of the sciatic nerve. Under DC 8520, in order to warrant a rating in excess of 20 percent, the evidence must show incomplete paralysis that is either "moderately severe" (40 percent) or "severe" (60 percent) in nature or, in the alternative, complete paralysis that is characterized by evidence such as the foot dangles and drops, with no active movement possible in the muscles below the knee, and flexion of the knee that is weakened or lost (80 percent). 38 C.F.R. § 4.124a, 8520. Additionally, the diagnostic code contemplates any symptom that results in a degree of loss or impaired function, and there is no mechanical formula to be applied; rather VA must evaluate all the relevant evidence of record. See 38 C.F.R. §§ 4.2, 4.6, 4.124 (a), Note. As noted above, the Veteran's symptoms associated with left lower extremity radiculopathy have been manifested by complaints of radiating pain, numbness, tingling, and decreased sensation. His functional impairment includes a worsening of numbness after sitting. Additionally, there are objective findings of an impaired gait and the need for a cane to ambulate, as well as intermittent weakness, positive straight leg raising tests, and diminished reflexes and sensation. The Board finds that all these symptoms are contemplated by the diagnostic code, which requires VA to evaluate all symptoms resulting from impairment of the sciatic nerve - to include pain, weakness, sensation, effects on gait, and any other functional impairment such as worsening after sitting. The Veteran's service-connected IVDS and herniated disc has been rated as 40 percent disabling, under DCs 5237 and 5243, under the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, respectively. Under DC 5237, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine. Under DC 5243, a 40 percent rating is warranted for IDS with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a (2015). An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DCs 5235-5243. The schedular criteria require VA to consider additional functional limitation, to include pain, weakness, stiffness, and other limiting factors, to include neurologic abnormalities. 38 C.F.R. §§ 4.40 , 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). Review of the record shows that the Veteran's service-connected lumbar back disability has been manifested by pain, limited motion, stiffness, tenderness, muscle spasms, flare-ups, and some additional limitation of motion after three repetitions, but no report of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. Notably, there has been no evidence of (or evidence approximating) ankylosis or fixation of the spine or incapacitating episodes having a total duration of at least six weeks during a twelve-month period. These symptoms are expressly reflected in the relevant diagnostic codes which require a consideration of limitation of motion, bed rest ordered by a physician, and all other functional limitations. Accordingly, the Board finds that an extraschedular evaluation is not warranted. The Board acknowledges that the Court, in its July 2011 Memorandum Decision, also discussed the following additional manifestations contained in VA, private, and lay evidence of record: the Veteran cannot sit for greater than half an hour and then will have to lie down; his legs give out on him when he has a sharp pain that radiates down his legs, which will occur every other day (and that he has fallen); he has intense spasticity involving the lumbar paravertebral musculature; he has weakness in his quadriceps muscles and feet. These are considered within the above-noted diagnostic codes and related considerations. To this point, the Board finds it highly probative that the schedular criteria provide for the assignment of ratings for his lumbar spine disability and for his left lower extremity radiculopathy that are more severe than what the Veteran has demonstrated. See Jandreau, 492 F.3d at 1376. In reaching this conclusion, the Board does not wish to minimize the impact of the Veteran's service-connected lumbar spine disability or his left lower extremity radiculopathy. While there is indication that the service-connected disabilities impact the Veteran's ability to function, that interference is found to be contemplated by the assigned disability ratings, and the Veteran is also, as granted herein, in receipt of a total disability rating based on individual unemployability due to all of his service-connected disabilities. For these reasons, the Board finds that entitlement to increased ratings for the Veteran's IVDS and herniated disc disability and left lower extremity radiculopathy, on an extraschedular basis, is denied. 3. TDIU Rating A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). Review of the record shows that the Veteran in this case does not meet the schedular requirements of 38 C.F.R. § 4.16(a). In that regard, service connection has been established for IVDS and herniated disc of the lumbar spine, rated as 40 percent disabling, effective from January 26, 2006; and for right lower extremity radiculopathy, rated as 10 percent disabling, effective from February 13, 2007. Herein, service connection has been granted for left lower extremity radiculopathy, now rated as 20 percent disabling. Thus, his combined service-connected disability rating (exclusive of the grant herein) was 50 percent, but is now 60 percent. On VA examination in January 2016, the examiner opined that the Veteran's peripheral nerve condition and back condition affected his ability to work, describing the functional impact as limited walking, standing, and sitting for prolonged time periods. On another VA examination in January 2016, the examiner opined that it was at least as likely as not that the combined effects of the Veterans service-connected lumbar spine and lower extremity radiculopathy disabilities rendered him unable to secure and follow a substantially gainful occupation, and provided a supporting explanation for the opinion. In March 2016, the Acting Director of Compensation Service concluded that none of the available objective evidence supported the Veteran's contention that his service connected disabilities, or a combination of the effects of the disabilities, prevented all types of gainful activity, and also concluded that entitlement to IU for any time period was not established. After having carefully reviewed the record, the Board finds that the most probative evidence of record supports a finding of entitlement to extraschedular TDIU. The Board does note that the VA examiner's opinion in 2016 is more probative and persuasive as it was based upon a review of the record and the Veteran, and provided a supporting explanation. Further, this opinion was provided by a medical practitioner. The Board thus accords this opinion significant probative value. Entitlement to an extraschedular TDIU has been established and his appeal is therefore granted. 38 C.F.R. § 4.16. ORDER An initial schedular rating of 20 percent, for left lower extremity radiculopathy is granted, subject to the laws and regulations governing the payment of monetary benefits. A higher extraschedular evaluation for the service-connected left lower extremity radiculopathy is denied. A higher extraschedular evaluation for the service-connected IVDS and herniated disc of the lumbar spine is denied. Entitlement to TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs