Citation Nr: 1642695 Decision Date: 11/07/16 Archive Date: 11/18/16 DOCKET NO. 05-23 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for a lumbar spine disability, including spondylolisthesis of the lumbar spine, from December 20, 2002 until August 11, 2006; from November 1, 2006 until December 5, 2008; and from June 1, 2009 to the present. 2. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, from December 20, 2002 until March 4, 2010; 20 percent from March 4, 2010 until January 14, 2011; and 40 percent thereafter 3. Entitlement to separate and compensable disability rating for peripheral neuropathy of the left lower extremity prior to June 30, 2008. 4. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, from June 30, 2008 until March 4, 2010; 20 percent from March 4, 2010 until January 14, 2011; and 40 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to November 2000. This matter has been pending for over a decade; originally it came before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) RO in Decatur, Georgia which, in pertinent part, granted service connection for spondylolisthesis of the lumbar spine, evaluated as 10 percent disabling, and granted service connection for L5 radiculopathy of the right lower extremity, evaluated as 10 percent disabling. Both awards were made effective from December 20, 2002; the date of receipt of the Veteran's original claim for compensation. After the August 2003 decision was entered, the case was transferred to the jurisdiction of the RO in Pittsburgh, Pennsylvania. In July 2005, after receiving additional evidence, and while the appeal to the Board was pending, the Pittsburgh RO increased the rating for spondylolisthesis of the lumbar spine from 10 to 40 percent, effective from December 20, 2002. The Board remanded the case for additional development in June 2007, November 2008, and November 2009. Following the lattermost remand, evidence was added to the claims file which reflected, among other things, that the RO had at some point granted a temporary total rating for the Veteran's service-connected lumbar spine disability under the provisions of 38 C.F.R. § 4.30, effective from August 11, 2006 until November 1, 2006, with restoration of the 40 percent rating thereafter; that the RO, in September 2008, had granted service connection for peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling, effective from June 30, 2008; that the RO, in March 2009, had granted a temporary total rating for the Veteran's service connected lumbar spine disability under the provisions of 38 C.F.R. § 4.30, effective from December 5, 2008 until April 1, 2009, with restoration of the 40 percent rating thereafter; and that the RO, in June 2009, had extended the temporary total rating for the lumbar spine until June 1, 2009, with subsequent restoration of the 40 percent rating. In June 2010, the RO in Huntington, West Virginia increased the disability ratings for each of the Veteran's lower extremities to 20 percent, effective from March 4, 2010. In December 2010, in light of the foregoing adjudicatory actions, and for purposes of clarity, the Board recharacterized the Veteran's appeal to take into account the temporary total ratings she had been granted, and to reflect the fact that her appeal encompassed the evaluation of any objective neurologic abnormalities associated with the service-connected disability of her lumbar spine. The Board again remanded the case and, in June 2010, while the case was in remand status, increased disability ratings were assigned for each of the Veteran's lower extremities to 40 percent, effective from January 14, 2011. Most recently the Board remanded the case in April 2013 to obtain additional records and an addendum to the most recent VA examination. The requested development has been conducted. The Board has recharacterized the issues on appeal to more accurately reflect the issues being pursued by the Veteran on appeal. FINDINGS OF FACT 1. Prior to September 2003 the Veteran's service-connected lumbar spine disorder was manifested by severe limitation of motion. It was not manifested by: persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, and absent ankle jerk; a fractured vertebra with spinal cord involvement rendering; or complete bony fixation (ankylosis) of the entire spine. 2. With the exception of assigned periods of convalescence, the service-connected lumbar spine disorder has never been manifested by intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. The service-connected lumbar spine disorder has never been manifest by unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. 4. The service-connected peripheral neuropathy of the right lower extremity has been moderately severe from December 2002 to the present; it has not been manifest by severe symptoms, muscular atrophy, or complete paralysis. 5. There is no evidence of objective neurologic abnormalities involving the left lower extremity prior to June 30, 2008. 6. The service-connected peripheral neuropathy of the left lower extremity has been moderately severe from June 30, 2008 to the present; it has not been manifest by severe symptoms, muscular atrophy, or complete paralysis. CONCLUSIONS OF LAW 1. The service-connected lumbar spine disorder does not warrant the assignment of a disability rating of in excess of 40 percent for any period of time covered by this appeal. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292, 5293 (2003); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5239, 5242 (2016). 2. A disability rating of 40 percent, but not higher, peripheral neuropathy of the right lower extremity, is granted effective December 20, 2002. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.74.124, 4.124a, Diagnostic Codes 8520 (2016). 3. A separate and compensable disability rating for peripheral neuropathy of the left lower extremity prior to June 30, 2008 is not warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5239, 5242 (2016). 4. A disability rating of 40 percent, but not higher, peripheral neuropathy of the left lower extremity, is granted effective June 30, 2008. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.74.124, 4.124a, Diagnostic Codes 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist VA has obtained service treatment records; VA medical records; private medical records, VA examination reports; assisted the Veteran in obtaining evidence; and, afforded her opportunity to present written statements, and evidence. The Veteran was afforded multiple VA examinations, with respect to her claim for an increased rating for her service-connected lumbar spine disorder and these examination reports contain probative evidence as to the level of disability caused by this service-connected condition at the time they were conducted. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Accordingly, the Board will address the merits of the appellant's appeal. II. Factual Background The Veteran's claim for service connection for a lumbar spine disability was received on December 20, 2002. Service treatment records reveal that she was treated for complaints of low back pain during service and was ultimately diagnosed with spondylolisthesis at L5-S1. In June 2003 a VA Compensation and Pension examination of the Veteran was conducted. She reported complaints of burning pain in her low back which radiated down her right leg. She also reported having numbness and weakness in her right leg. Her back pain was treated with prescription and non-prescription pain medication; she reported that she used a cane for assistance walking. Physical examination revealed tenderness to palpation at L5-S1. Range of motion testing revealed forward flexion to 70 degrees with pain; extension to zero degrees; and lateral bending to 20 degrees on the right and 40 degrees on the left with pain on the extreme of range of motion. Straight leg raising testing was positive in the L4 and L5 distribution down the right leg. Decreased sensation of the right leg was noted along with some decreased reflexes. She walked with a list to the left. The diagnosis was L5-S1 spondylolisthesis with resultant radiculopathy. In May 2005 another VA examination of the Veteran was conducted. She reported having intermittent low back pain which was not disabling, but was daily in the past few weeks. Prolonged standing or sitting caused pain, which she stated was helped by shifting positions. She reported experiencing tingling sensation in her feet up to three times a month. She reported flares of back pain with increased activity, but also reported being able to do laundry and mow the lawn. She did not use a back brace and indicated that she occasionally used a cane to ambulate, but that the last time she used it was the previous December. Physical examination revealed her gait was steady with no abnormalities shown. There was tenderness at L5-S1, but not obvious deformity, swelling, or redness. Range of motion testing revealed forward flexion to 30 degrees with pain beginning at that point; lateral flexion to 30 degrees on both sides with minimal pain; rotation to 30 on both sides with increased pain at the endpoint; extension was 30 degrees. Straight leg raising testing was positive for low back pain but not for radiating pain into the legs, however shakiness of the legs on testing was noted. Lower extremity reflexes were normal. Pain was her limiting factor and there was no objective evidence of weakness, decreased endurance or fatigability on repetitive motion testing. X-rays were conducted and the diagnosis was spondylolisthesis of the lumbar spine with radiculopathy and degenerative disc disease and chronic pain. VA records show that the Veteran had spinal fusion surgery to treat her service-connected low back disorder in August 2006. Records reveal post-surgical recovery and treatment including physical therapy. She is assigned a temporary total (100% ) disability rating because of her surgery and convalescence for the period of time form August 11, 2006 to November 1, 2006. See 38 C.F.R. § 4.30. In March 2008 another VA Compensation and Pension examination of the Veteran was conducted. The examiner noted the Veteran's 2006 back surgery. The examiner noted that prior to surgery the she required a cane for ambulation and was unable to take a job as a part time cashier; however, her complaints of bilateral lower extremity weakness had improved since the surgery. She reported symptoms of aching low back pain which was about a 3 or 4 out of 10 and was worse with prolonged standing over 30 minutes. She reported flares of pain to 8 out of 10 approximately twice a week which caused her to modify her activity. He had not been hospitalized since here 2006 surgery and she had not been prescribed bedrest. She indicated a feeling of persistent right leg weakness with a sense of giving-way, but she had never fallen and did not require a cane or assistive device to ambulate. Right lower extremity numbness was noted. She reported she had taken a new job which provided her a stool to avoid prolonged standing. Physical examination noted the surgical scar and the presence of spasm in the area of the scar, especially with forward flexion. Range of motion testing revealed forward flexion to 40 degrees with pain beginning at that point however by the end of repetitive testing forward flexion was limited to 10 degrees due to pain. She had lateral flexion to 30 degrees on both sides with no pain; extension was 10 degrees and decreased to 0 degrees due to pain, stiffness and spasm on repetition. Neurologic testing of the lower extremities revealed significant hamstring spasm on the right, and decreased touch sensation of the right leg in the L5 distribution. Strength testing of the legs revealed normal strength (5/5) and normal muscle tone. Examination was consistent with ankylosis of L4 to S1 consistent with her prior fusion surgery and noted ranges of motion. She was able to walk pain free with a normal gait. A June 2008 private treatment record reveled that examination of the lower extremities revealed normal strength and equal reflexes. Pain, numbness and tingling in the L5 nerve distribution of the right leg were noted. She could walk on a treadmill for 15 min and was able to heel and toe walk without any evidence of foot drop. In July 2008 VA neurologic examination of the Veteran was conducted. She reported she was a full time college student with a concentration in healthcare management. She reported that she had not had any relief since the 2006 spinal surgery, however, the prior examination reports contradict this. She did report an increase in symptoms including pain and numbness starting in her left lower extremity. She reported weakness and fatigue related to radiculopathy of the lower extremities and that she had fallen 6 times in 6 months due to these symptoms. Testing confirmed classic bilateral radiculopathy of the lower extremities related to her back disorder. Physical examination revealed diminished sensation of the bilateral lower extremities being slightly worse on the right. Position sense was generally good and reflexes were intact. The Veteran required a second back surgery in December 2008 to readdress her spinal fusion. She is assigned another temporary total (100% ) disability rating because of this second surgery and convalescence for the period of time from December 5, 2008 to June 1, 2008. See 38 C.F.R. § 4.30. VA treatment records dated in 2008 and 2009 reveal treatment for the Veteran's complaints of low back pain with prescribed narcotic pain medication and flexoril. In March 2010 another VA Compensation and Pension examination of the Veteran was conducted. Noted treatment for her back pain included pain mediation, physical therapy in the past, and the use of a TENS unit. She also had a prescribed back brace since December 2009 which she used while at work. Her ambulation was normal but she couldn't heel walk due to L5 irritation. She was on a prescribed exercise program to help with weight loss. Physical examination revealed no spasm. She had forward flexion to 40 degrees and extension to 5 degrees with pain at the end points, especially with extension. She was noted to be working with no problems because her work afforded her the opportunity to move and change positions as needed. Incapacitating episodes were noted to be her post-surgical convalescence period. Neurologic examination revealed decreased sensation of the right leg. She had poor ability to heel walk and was much better at standing on her toes. The examiner indicated her neurologic symptoms were considered to be moderate in nature. The diagnosis as lumbosacral degenerative disc disease with stable fixation from L4 to S1 along with left lower extremity L5 neuropathy. In January 2011 another VA examination of the Veteran was conducted. The examiner reviewed and noted the Veteran's entire medical history related to her service-connected back disorder including all her treatment and surgeries. She reported current treatment with pain medication, a TENS unit, and exercise by walking on a treadmill. She reported daily back pain which could reach a 9 out of 10 and was exacerbated by prolonged sitting; however she reported being employed with a job which allowed her to sit or stand as needed, so her back pain was not a problem at her job. Again she indicated that prescribed aerobic exercise helped with her back pain. Physical examination revealed tenderness of the lumbar spine along with right sided sciatic nerve irritation down her right leg to her foot. Range of motion testing revealed flexion to 30 degrees and extension to at most 5 degrees with pain at the end of range of motion. The examiner specifically noted that the Veteran's back pain did not impact her job but did have some effect on her ability to do chores at home particularly those involving bending or lifting. A single instance of being prescribed a week off from work due to back pain was noted in 2010. Neurologic testing revealed decreased sensation of the lower extremities with the right leg being worse than the left. The examiner described her neurologic symptoms as moderately severe. In April 2013 the examiner provided an addendum to the examination report after review of the medical evidence of record. The examiner indicated that the Veteran did not have ankylosis of the entire thoracolumbar spine, but she had favorable ankylosis of the lumbar spine and the L4 to S1 levels due to her spinal surgery. The examiner described the Veteran's right lower extremity neurologic symptoms as being moderately severe dating from December 2002 to the present. The left lower extremity neurologic symptoms were described as being moderate, but that there was no evidence of left lower extremity neuropathy prior to June 30, 2008. Other VA treatment records covering the appeal period have been obtained. The generally note treatment for complaints of low back pain with medication. In all of the evidence of record there is no evidence that neurologic symptoms resulting from the service-connected lumbar spine disability has caused bladder or bowel impairment. II. Increased Disability Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321 (a), 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2016). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). This appeal being from the initial ratings assigned to disabilities upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation of a proposed rating reduction. Fenderson, 12 Vet. App. at 126. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. Lumbar Spine Disorder During the course of this appeal the regulations for rating disabilities of the spine were revised effective September 23, 2002, and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003). The regulations for intervertebral disc syndrome under Diagnostic Code 5293 that became effective on September 23, 2002, contained notes addressing the definition of incapacitating episodes and addressing rating procedure when intervertebral disc syndrome is present in more than one spinal segment. These notes were omitted when the criteria for intervertebral disc syndrome were reclassified as Diagnostic Code 5243, effective on September 26, 2003. This omission was apparently inadvertent and was corrected by 69 Fed. Reg. 32,449, 32,450 (June 10, 2004). The correction was made effective from September 26, 2003. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (November 19, 2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (April 10, 2000). The Rating Schedule, prior to September 26, 2003, provided ratings for limitation of motion of the lumbar spine when limitation was slight (10 percent), moderate (20 percent), or severe (40 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5292 (effective before September 26, 2003). For lumbosacral strain, ratings were provided when there was evidence of characteristic pain on motion (10 percent), muscle spasm on extreme forward bending with loss of lateral spine motion, unilateral, in a standing position (20 percent), or listing of the whole spine to the opposite side with a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion (40 percent). 38 C.F.R. § 4.71 , Diagnostic Code 5295 (effective before September 26, 2003). Prior to September 26, 2003 degenerative disc disease was rated under Diagnostic Code 5293 for intervertebral disc syndrome. The Rating Schedule, provided for a noncompensable rating for postoperative, cured intervertebral disc syndrome. A 10 percent rating was warranted upon a showing of mild intervertebral disc syndrome, while a 20 percent rating contemplated moderate intervertebral disc syndrome with recurring attacks. A 40 percent rating required severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent rating, the highest rating assignable, required persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. § 4.71 , Diagnostic Code 5293 (effective before September 26, 2003). The prior rating schedule also provided for 100 percent disability ratings for disabilities of the spine for: residuals of a fractured vertebra with spinal cord involvement rendering the veteran bedridden or requiring long leg braces; or for complete bony fixation (ankylosis) of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286 (effective before September 26, 2003). Effective September 26, 2003, the criteria for rating disabilities of the spine were revised with reclassification of the diagnostic codes. The reclassified Diagnostic Code for spondylolisthesis or segmental instability is 5239 while the new Diagnostic Code for intervertebral disc syndrome is 5243. 38 C.F.R. § 4.71a , Diagnostic Code 5243 (2016)(effective from September 26, 2003). The September 2003 regulation amendments provide a general rating formula for diseases and injuries of the spine (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) 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 as follows: For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire thoracolumbar spine (50 percent); For unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); and For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent). 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine (2016) (effective from September 26, 2003). It is noted that when evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2006). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion as noted. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (3) (2016). Range of motion measurement are to be rounded off to the nearest five degrees. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (5)(2006). Disability of the thoracolumbar and cervical spine segments are to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2016). As noted above, Diagnostic Code 5293 was amended effective in September 2002 to evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under the new rating schedule for intervertebral disc syndrome, a 10 percent rating contemplates incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating contemplates 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 contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2016). An incapacitating episode is "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 , Diagnostic Code 5243, formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2006). The Veteran's service-connected spondylolisthesis of the lumbar spine with limitation of motion (lumbar spine disorder) is rated at a 40 percent disability rating effective from the initial dated of service connection in December 2002 to the present. The Veteran is assigned temporary total (100%) disability ratings for the periods of time from August to November 2006 and from December 2008 to June 2009. As noted above these 100 percent ratings were assigned for convalescence after back surgery pursuant to 38 C.F.R. § 4.30. The Veteran has not disagreed with the periods of time that the temporary total ratings were assigned. Rather, her appeal addresses the underlying disability rating assigned for her service-connected lumbar spine disorder. Initially the Board notes that there are diagnoses of degenerative disc disease of record. However, in order to warrant the assignment of a disability rating in excess of the presently assigned 40 percent rating the Veteran would have to have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2016). This is not shown by the evidence of record. To the extent that the record notes prescribed bed rest of such duration, it is during the periods of time that she is receiving a 100 percent ratings under 38 C.F.R. § 4.30. Accordingly, the assignment of a disability rating in excess of the presently assigned 40 percent rating based on incapacitating episodes for any period of time covered by the appeal is not warranted. For the period of time prior to September 2003, which is covered by the old rating criteria, the Veteran is already assigned the maximum disability rating of 40 percent for severe limitation of motion of the spine. See, 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292 (2003). To warrant a rating in excess of 40 percent requires intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, and absent ankle jerk with little intermittent relief; or a fractured vertebra with spinal cord involvement rendering; or complete bony fixation (ankylosis) of the entire spine. See, 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5286, 5293 (2003). Review of the evidence of record does not show any of these symptoms to be present prior to September 2003. Accordingly, the assignment of a disability rating in excess of 40 percent based upon the rating criteria in effect prior to September 2003 is not warranted. Finally, in order to warrant the assignment of a disability rating in excess of 40 percent under the current rating criteria the Veteran would have to have unfavorable ankylosis of the entire thoracolumbar spine or the unfavorable ankylosis of the entire spine, which is not shown by the evidence of record. The April 2013 medical statement indicates that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine. To the extent that there is ankylosis of the lumbar spine from L4 to S1, the examiner indicates it is favorable, only warranting the assignment of a 40 percent disability rating. The preponderance of the evidence is against the assignment of an initial disability rating for the service-connected lumbar spine disability for any period of time covered by this appeal, and under any applicable rating criteria covering the periods of time in question. B. Neuropathy of the Lower Extremities. The Veteran is assigned separate disability ratings for neuropathy of the right and left lower extremities resulting from his service-connected lumbar spine disorder. Associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5239, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2016). Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which at times can be excruciating and is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by the organic changes referred to above is that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2016). Neuralgia is characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2016). Paralysis of the sciatic nerve is rated under Diagnostic Code 8520. Mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent rating. Complete sciatic nerve paralysis warrants the assignment of an 80 percent rating and contemplates that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or very rarely lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2004). 1. Right Lower Extremity The Veteran is assigned a separate disability rating for neuropathy of her right lower extremity effective from December 2002 to the present. Despite the fact that such a separate rating should not be assigned prior to September 2003, the Board will not disturb the effective date. She is assigned the following ratings: 10 percent from December 20, 2002 until March 4, 2010; 20 percent from March 4, 2010 until January 14, 2011; and 40 percent thereafter. The evidence of record reveals evidence of neurologic abnormalities of the right lower extremity related to the service-connected lumbar spine disorder dating from the date of service connection in December 2002 to the present. In the April 2013 report the VA examiner characterized the Veteran's right lower extremity neuropathy as being moderately severe from that point to the present. Accordingly the assignment of 40 percent disability rating is warranted effective December 20, 2002, the date of service connection. The preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for any period of time covered by the appeal. Specifically, there is no evidence of marked muscle atrophy or of complete paralysis of the right lower extremity. Rather, the evidence reveals that the Veteran is engaged in a walking exercise program to help with her mobility and low back pain. 2. Left Lower Extremity The Veteran is assigned a separate disability rating for neuropathy of her left lower extremity effective from June 30 2008 to the present. She is assigned the following ratings: 10 percent from June 30, 2008 until March 4, 2010; 20 percent from March 4, 2010 until January 14, 2011; and 40 percent thereafter. Initially the Veteran has raised the issue of the assignment of a separate rating prior to June 30, 2008. The Board has previously addressed this issue as involving service connection. However once service connection for the lumbar spine disorder was granted, the issue becomes a rating issue; that is, whether a sperate rating is warranted because "when evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code." 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (1). Simply put, review of the evidence of record does not reveal any evidence of objective neurologic abnormalities involving the left lower extremity prior to the June 30, 2008 VA examination report. The recent April 2013 VA medical report also notes no evidence of any objective neurologic abnormalities involving the left lower extremity prior to that time. Accordingly the preponderance of the evidence is against the assignment of a separate and compensable disability rating for peripheral neuropathy of the left lower extremity prior to June 30, 2008. Effective June 30 2008, the Veteran has objective evidence of neurologic abnormalities involving the left lower extremity. The April 2013 VA medical statement indicates that the Veteran's symptoms are at least moderate in nature. The RO has assigned up to a 40 percent rating for moderately severe symptoms for the most recent period rated. Resolving doubt in the Veteran's favor the Board finds that the assignment of 40 percent disability rating is warranted effective June 30, 2008 for the Veteran's neuropathy of the left lower extremity. The preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for any period of time covered by the appeal. Specifically, there is no evidence of marked muscle atrophy or of complete paralysis of the left lower extremity. Again, the evidence reveals that the Veteran is engaged in a walking exercise program to help with her mobility and low back pain. C. Additional Considerations The representative has raised, and the Board has considered whether the case should be referred to the Director of the Compensation Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected disabilities at issue, as discussed above, are contemplated by the schedular criteria. There is no contention by the Veteran or indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings, to include the separate rating granted herein. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321 (b) is not in order. Consideration of unemployability is also not warranted, and the evidence of record shows the Veteran to be employed. The Board has also considered the doctrine of reasonable doubt but has determined that the preponderance of the evidence is against the assignment of disability ratings in excess of those assigned above so the doctrine is not applicable to these matters. ORDER An initial disability rating in excess of 40 percent for a lumbar spine disability, including spondylolisthesis of the lumbar spine, from December 20, 2002 until August 11, 2006; from November 1, 2006 until December 5, 2008; and from June 1, 2009 to the present is denied. An initial disability rating of 40 percent, but not higher, for peripheral neuropathy of the right lower extremities granted effective December 20, 2002. Entitlement to separate and compensable disability rating for peripheral neuropathy of the left lower extremity for the period of time prior to June 30, 2008 is denied. An initial disability rating of 40 percent, but not higher, for peripheral neuropathy of the left lower extremity is granted effective June 30, 2008. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs