Citation Nr: 1730486 Decision Date: 08/01/17 Archive Date: 08/11/17 DOCKET NO. 12-22 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Timeliness of a notice of disagreement with regard to an August 2006 rating decision that continued a 10 percent evaluation for degenerative disc disease and degenerative changes of the thoracolumbar spine, a 10 percent evaluation for degenerative changes of the cervical spine, and a 10 percent evaluation for essential hand tremors. 2. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease and degenerative changes of the thoracolumbar spine (hereinafter "thoracolumbar spine disability"). 3. Entitlement to an evaluation in excess of 20 percent for right lower extremity peripheral neuropathy associated with the Veteran's thoracolumbar spine disability REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 administrative decision and a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Phoenix, Arizona, and Columbia, South Carolina. Jurisdiction has been retained by the RO in Phoenix, Arizona. A January 2014 rating decision awarded a separate 20 percent rating for the Veteran's right lower extremity radiculopathy associated with his thoracolumbar spine disability. As explained below, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine provides for rating associated neurologic abnormalities. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. Therefore, entitlement to an evaluation in excess of 20 percent for his associated right lower extremity radiculopathy is properly before the Board herein as part of the thoracolumbar spine rating claim. On his October 2007 and August 2012 substantive appeals, the Veteran requested a Board hearing. Subsequently, in December 2016, the Veteran withdrew his request for a Board hearing in writing. Therefore, these matters are ready for decision. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In March 2011, before the Board promulgated a decision, the Board received a statement from the Veteran that expressed the Veteran's desire to withdraw from appellate review his appeal involving the timeliness of his notice of disagreement to the August 2006 rating decision that continued a 10 percent evaluation for a thoracolumbar spine disability, a 10 percent evaluation for degenerative changes of the cervical spine, and a 10 percent evaluation for essential hand tremors. 2. The Veteran's thoracolumbar spine disability is manifested by no more than flexion limited to 45 degrees, and a combined range of motion limited to 180 degrees, with painful motion; there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, no ankylosis, and no incapacitating episodes. 3. The Veteran's right lower extremity radiculopathy associated with his thoracolumbar spine disability is productive of, at most, moderate symptoms of radiating pain; no paralysis is shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of an appeal of the timeliness of his notice of disagreement to the August 2006 rating decision that continued a 10 percent evaluation for a thoracolumbar spine disability, a 10 percent evaluation for degenerative changes of the cervical spine, and a 10 percent evaluation for essential hand tremors, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for an evaluation of 20 percent, but not higher, for the Veteran's thoracolumbar spine disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243 (2016). 3. The criteria for an evaluation in excess of 20 percent for right lower extremity peripheral neuropathy associated with the Veteran's thoracolumbar spine disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The appeal involving the timeliness of the notice of disagreement relating to an August 2006 rating decision was withdrawn by the Veteran and is therefore dismissed herein. Therefore, any issues as to VA's duties to notify and assist are moot. With regard to the Veteran's thoracolumbar spine and right lower extremity radiculopathy rating claims, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). The Board finds that an April 2010 notice letter fully satisfied VA's duty to notify the Veteran. See 38 U.S.C.A. § 5103(a). While the Board acknowledges that the notice letter explains the method for assignment of a rating, it did not explain how VA assigns effective dates. The Board finds this error to be harmless because the claim for an increased rating is granted for the entire period of the appeal. The Board also finds that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's VA treatment records and private treatment records are all in the claims file. The Veteran has not identified any outstanding VA or private treatment records for VA to obtain. VA's duty to assist includes the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2016). The Veteran was provided with VA examinations in May 2010, February 2013, and March 2016 relating to his thoracolumbar spine and associated neurologic abnormalities, including radiculopathy. There is no evidence indicating that there has been a material change in the severity of the Veteran's disabilities since the last VA examination. See 38 C.F.R. § 3.327(a) (2016). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The examiners personally interviewed and examined the Veteran and provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria. As such, the Board finds these VA examination reports are adequate upon which to base a decision on the claims. Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Therefore, for the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Analysis A. Dismissal With regard to the Veteran's appeal involving the timeliness of his notice of disagreement with the August 2006 rating decision (which denied entitlement to evaluations in excess of 10 percent (each) for his service-connected thoracolumbar spine disability, cervical spine disability, and essential hand tremors), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2016). In March 2011, before the Board promulgated a decision in this matter, the Veteran submitted a written request to withdraw from appellate consideration his appeal involving the timeliness of the notice of disagreement filed with respect to the August 2006 rating decision. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal involving the timeliness of the notice of disagreement with the August 2006 rating decision, and it is therefore dismissed. B. Thoracolumbar Spine and Radiculopathy The Veteran served for 35 years in the U.S. Navy and retired at the rank of Rear Admiral. He contends that his thoracolumbar spine disability and associated right lower extremity neuropathy are more severe than are contemplated in the current ratings. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 2014). Where service connection has already been established and an increase in the disability rating is in issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability in issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the thoracolumbar spine, the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243) provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2016). Note 1 to the General Rating Formula provides for a separate evaluation for any associated, objective neurologic abnormalities. 38 C.F.R. § 4.71a (2016). Note 2 to the General Rating Formula for Diseases and Injuries of the Spine provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2016). Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016). The Formula for Rating IVDS Based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2016). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's lumbar spine disability is currently assigned a 10 percent disability rating under Diagnostic Code 5242, effective February 1, 2006. The Veteran seeks an increased rating. See Claim, October 2007. The Veteran was afforded VA examinations in May 2010, February 2013, and March 2016. The May 2010 VA examination report shows the examiner noted that a 2009 magnetic resonance image (MRI) report showed multilevel degenerative joint disease and degenerative disc disease with retrolisthesis, moderate canal narrowing, and bilateral foraminal stenosis at several levels. The Veteran reported constant, moderate lumbar midline pain, worse with lifting, bending, and impact, and stiffness and weakness. He also reported radicular pain, greater to the right leg than the left. The examiner noted that the Veteran had no associated urinary, fecal incontinence, numbness, paresthesias, leg or foot weakness, falls, or unsteadiness. No history of fatigue or spasms was noted. The Veteran report severe flare-ups of pain once every one to two months, lasting one to two days, precipitated by bending and lifting, alleviated somewhat by lying down and heat. Regarding the question as to whether there were any additional functional limitations during flare-ups, including any additional limitation of motion, the examiner answered that the Veteran lies down as much as possible during flare-ups, limits ambulation, and wears a brace which allows him to work (sedentary). The examiner noted the Veteran used a brace as an aid, but that he had no limitation with walking, and no incapacitating episodes. Examination revealed a normal gait, but a stooped posture. Lumbar flattening was noted. No ankylosis was found, and no muscle spasm. Motor exam was 5/5 in the lower extremities. No muscle atrophy was found. Sensation in the lower extremities to vibration, pain, light touch, and position sense was 2/2 bilaterally. Monofilament testing was noted as intact and equal in the lower extremities. Range of motion testing revealed flexion to 65 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 30 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 30 degrees, with painful motion noted (180 combined degrees). No additional limitations were found after repetitive use testing. Electrodiagnostic (EMG) testing revealed mild, chronic right L4 radiculopathy, without acute axonal loss; no left lower extremity lumbosacral radiculopathy was found. The examiner noted lumbar-thoracic degenerative disc disease (DDD) and degenerative joint disease (DJD). The examiner noted that the Veteran was a fulltime program director at his current employer, and that he lost no time from work in the past 12-month period due to his thoracolumbar disability, and that it had no significant effects on his usual occupation. The February 2013 VA examination report shows the Veteran reported symptoms of daily and constant low back pain, with intermittent radiation of pain down the right leg to just above the knee. He reported flare-ups once every three to four months, lasting one to two days, with worse pain and an inability to straighten up completely and difficulty walking, but no additional symptoms, which flare-ups usually resolved after an epidural injection. Range of motion testing revealed flexion to 90 degrees or greater, extension to 25 degrees, right and left lateral flexion to 25 degrees, right and left lateral rotation to 30 degrees, with some objective evidence of painful motion noted. Repetitive use testing revealed additional loss of flexion only to 85 degrees. Likewise, the examiner noted that additional functional impairment after repetitive use testing involved less movement than normal, and pain with movement. Tenderness to palpation was noted, but no guarding or muscle spasm, and no muscle atrophy, were found. Muscle strength testing of the lower extremities was 5/5. Deep tendon reflexes of the knees and ankles were 2+. Straight leg testing for radiculopathy was positive on the right and negative on the left. The Veteran's symptoms of right lower extremity radiculopathy were noted as involving moderate right lower extremity pain, but no numbness, and no paresthesias or dysesthesias. No symptoms of radiculopathy in his left lower extremity were noted. The examiner noted that the Veteran's right lower extremity radiculopathy involves his right sciatic nerve, and the examiner characterized the overall severity as moderate. The examiner noted that the Veteran did not have any other neurologic abnormalities, including no bowel or bladder problems. The examiner acknowledged that the 2010 EMG study revealed mild, chronic right L4 radiculopathy without acute axonal loss. The examiner noted that the Veteran had no incapacitating episodes over the past 12 months due to IVDS. Use of an occasional walking stick was noted. Regarding the Veteran's occupational impairment due to his thoracolumbar spine disability, the examiner opined that the Veteran cannot lift over 10 pounds, and that he is unable to run. The March 2016 VA examination report shows the Veteran reported he experiences sharp pain in his lower back that radiates to the right lower leg. He denied any numbness or tingling of bilateral lower extremities. The Veteran reported experiencing flare-ups of pain, during which he cannot lift over 10 pounds and he is unable to walk long distances. He reported being seen by Dr. G. at the Tucson Orthopedic Institute for ESI injections when he has flare-ups, which he reported were infrequent and that his most recent was in October 2014. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees, with painful motion noted. The examiner noted that painful motion did not, however, cause any additional functional limitation. There was no evidence of pain on weight bearing. No additional loss of motion was found with repetitive use testing. Paraspinal tenderness was found on palpation. The examiner noted that pain significantly limited functional ability with repeated use over a period of time, and during flare-ups. The examiner explained that additional limitation of motion could not be estimated, but that the expected loss of function when the joint is used repeatedly over a period of time, and during a flare-up of pain, would be expected to involve increased pain with bending, stooping, lifting, and carrying. No guarding or muscle spasm was found. Muscle strength testing was 5/5 and deep tendon reflexes were 2+ in the lower extremities. Sensation to light touch in the lower extremities was normal, straight leg testing was negative. While acknowledging the 2010 EMG testing results, the examiner noted that there were no signs or symptoms of radicular pain or other radiculopathy found on examination. The examiner also noted there were no associated neurologic abnormalities such as bowel or bladder problems. No ankylosis was found. The examiner noted that the Veteran does not have IVDS. No assistive device was noted. His gait was normal. An x-ray report included an impression of moderate to advanced degenerative disease throughout the lumbar spinespine, with disc disease greatest at L3-L4. The examiner opined that the Veteran's spine disability does not affect his ability to work. The Board notes that it has reviewed all of the Veteran's private treatment records, none of which show any symptoms more severe than those noted in the VA examinations above. A July 2009 private treatment record shows range of motion of his lumbar spine was normal, and muscle strength, reflexes, and sensation in the lower extremities was all normal. Straight leg raise testing was negative bilaterally. However, it was noted that an April 2009 MRI of his lumbar spine showed significant degenerative changes at L2-3 and L3-4 resulting in moderate to severe impingement upon the right L2 and 3 nerve roots, and right lower extremity radiculopathy was diagnosed. See PTRs, received September 2009 at p.1 of 3. An August 2009 private physical therapy record shows that range of motion testing revealed a 50 percent deficit in range of flexion, and a 10 degree deficit in range of extension. In other words, flexion was to 45 degrees, and extension was to 10 degrees. See Tucson Orthopaedic, received April 2010 at p.5 of 8. As shown above, none of the VA examination reports show forward flexion limited to less than 60 degrees, combined range of motion limited to 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis, so as to meet the criteria for the next higher 20 percent rating. On the other hand, the Board acknowledges that the August 2009 private physical therapy record showed flexion to 45 degrees, which meets the criteria for a 20 percent rating under the General Rating Formula. The Board also acknowledges that the April 2009 MRI of his lumbar spine showed "significant" degenerative changes, and the March 2016 X-ray report associated with the March 2016 VA examination shows the impression was "moderate to advanced" degenerative disease of the lumbar spine. The Board acknowledges that, as required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing. Here, the 2016 examiner noted no pain on weight bearing, and in this case it is reasonable from a lay perspective that passive motion, if measured, would be greater than the active motion and not favorable to the Veteran for rating. Further, the entire examination report contains sufficient clinical observations and assessments to indicate that the examiner had a thorough understanding of the Veteran's disability and level of severity. An additional examination solely for measuring passive motion is not warranted. Having weighed all the evidence, the Board finds that entitlement to a 20 percent rating is warranted for the entire period on appeal. Again, the Board notes that the April 2009 private physical therapy record shows range of flexion was to 45 degrees, which meets the criteria for a 20 percent rating. While the Board acknowledges that all three subsequent VA examination reports did not show flexion to less than 60 degrees, at the same time, objective diagnostic testing results (MRI/X-ray) show that the Veteran's lumbar spine degenerative changes were found to be "significant" in April 2009, and were found to be "moderate to advanced" in March 2016, which findings tend to bring the Veteran's overall disability picture to more nearly approximate the next higher 20 percent rating under the General Rating Formula. Therefore, the Board will grant entitlement to the next higher 20 percent rating for the entire period on appeal. The preponderance of the evidence shows that the criteria for a rating in excess of 20 percent for the Veteran's thoracolumbar spine disability have not been met or approximated. Forward flexion of the thoracolumbar spine to 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine, are not shown, so as to meet the next higher 40 percent rating criteria under the General Rating Formula for Diseases and Injuries of the Spine. As explained above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, whichever results in the higher rating. However, as shown above, no incapacitating episodes over any 12-month period requiring physician prescribed bed rest have been shown. Therefore, no entitlement to any higher rating under the Formula for Rating IVDS is shown at any time during the period on appeal. With regard to assigning higher ratings according to 38 C.F.R. § 4.40 and 4.45, the Board acknowledges the Veteran's reported complaints of painful motion and weakness, which he is competent to report. However, no additional functional loss, including no additional degrees of limitation of motion, due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, was found on examination after repetitive use testing, and any additional functional loss in terms of degrees of additional limitation of motion was not able to be estimated. Regardless, and despite all three VA examiners finding ranges of flexion limited to only 65 degrees, at most, the Board has granted entitlement to the next higher 20 percent rating, the higher 20 percent rating granted herein contemplates additional functional loss, including additional limitation of motion, beyond that found on examination by all three VA examiners. Thus, the Board finds that the Veteran's functional loss due to painful motion and weakness is already contemplated by the currently assigned 20 percent rating. See Deluca v. Brown, 8 Vet.App. 202, 205 (1995). A January 2014 rating decision awarded a separate 20 percent rating for the Veteran's right lower extremity radiculopathy associated with his service-connected thoracolumbar spine disability, effective October 18, 2007 (the date of the claim). As noted above, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine provides for a separate evaluation for any associated, objective neurologic abnormalities. 38 C.F.R. § 4.71a (2016). Therefore, the Board will address herein whether an evaluation in excess of 20 percent for the Veteran's associated right lower extremity radiculopathy is warranted. The Veteran's right lower extremity radiculopathy is currently rated as 20 percent disabling under Diagnostic Code 8520, sciatic nerve, paralysis of, which provides a 10 percent rating for mild incomplete paralysis, 20 percent for moderate, 40 percent for moderately severe, 60 percent for severe with marked muscular atrophy, and 80 percent for complete, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a (2016). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of Peripheral Nerves, Schedule of Ratings (DCs 8510-8730). As shown above, the May 2010 VA examination report shows that motor exam was 5/5 in the lower extremities, no muscle atrophy was found, sensation in the lower extremities to vibration, pain, light touch, and position sense was all 2/2 bilaterally, and monofilament testing was intact and equal in the lower extremities. EMG testing revealed "mild" right lower extremity radiculopathy. The February 2013 VA examiner noted no muscle atrophy was found, muscle strength testing of the lower extremities was 5/5, and deep tendon reflexes of the knees and ankles were 2+. Straight leg testing for radiculopathy was positive on the right and negative on the left. The February 2013 VA examiner opined that the Veteran had "moderate" symptoms of right lower extremity radiculopathy, specifically pain, but no numbness, paresthesias, or dysesthesias. No symptoms of radiculopathy in his left lower extremity were found. The March 2016 VA examination report shows the Veteran reported he experiences sharp pain in his lower back that radiates to the right lower leg. Sensation to light touch in the lower extremities was normal, and straight leg testing was negative. While acknowledging the 2010 EMG testing results, the examiner noted that there were no signs or symptoms of radicular pain or other radiculopathy found on examination. The Board finds that all of these symptoms reported by the Veteran and the objective findings and conclusions of the VA examiners do not meet or approximate the criteria for a rating in excess of the presently assigned 20 percent rating for the Veteran's right lower extremity radiculopathy associated with this thoracolumbar spine disability. As shown above, several objective findings were normal or negative. His right lower extremity was found by EMG testing to be "mild" in 2010, albeit the later February 2013 VA examiner noted it was "moderate." The presently assigned 20 percent rating explicitly contemplates "moderate" symptomatology, whereas the next higher rating contemplates "moderately severe" incomplete paralysis. No paralysis, paresthesia/dysesthesia, or numbness has been shown. No muscle atrophy is shown. Moreover, as noted above, the rating criteria for peripheral nerves provide that "when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree." 38 C.F.R. § 4.124a, Diseases of Peripheral Nerves, Schedule of Ratings (DCs 8510-8730). In this case, the Veteran's symptoms are wholly sensory (pain), and the present 20 percent rating is for "moderate" symptoms. Therefore, the Board finds that the preponderance of the evidence is against finding entitlement to a rating in excess of 20 percent for the Veteran's right lower extremity radiculopathy associated with his service-connected thoracolumbar spine disability. Therefore, in summary, the Board concludes that entitlement to a 20 percent rating, but not more, is warranted for the Veteran's thoracolumbar spine disability for the entire period on appeal; and a rating in excess of 20 percent for his associated right lower extremity radiculopathy is not warranted. As the preponderance of the evidence is against assigning higher ratings, the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b) (West 2014). The Board has considered whether referral for an extraschedular rating is appropriate. "The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. . . The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet.App. 57, 60 (1993), and Floyd v. Brown, 9 Vet.App. 88, 95 (1996)). "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. . .[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun at 115. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's thoracolumbar spine disability and associated right lower extremity radiculopathy are inadequate. A comparison between the level of severity and symptomatology of the Veteran's thoracolumbar spine disability and associated right lower extremity radiculopathy , including his limitation of motion, painful motion, and radiating pain with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology as discussed above. As such, an extraschedular rating is not appropriate. ORDER The appeal of the timeliness of a notice of disagreement to the August 2006 rating decision is dismissed. A 20 percent evaluation, but not higher, for a thoracolumbar spine disability is granted. An evaluation in excess of 20 percent for right lower extremity radiculopathy associated with a service-connected thoracolumbar spine disability is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs