Citation Nr: 1804659 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 09-29 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative joint disease (DJD) and degenerative disc disease (DDD) prior to October 25, 2012, and in excess of 40 percent thereafter. 2. Entitlement to an increased disability rating in excess of 10 percent for right lower extremity radiculopathy associated with lumbosacral strain with DJD and DDD prior to October 25, 2012, in excess 20 percent from October 25, 2012 to November 14, 2016, and in excess of 40 percent thereafter. 3. Entitlement to an increased disability rating in excess of 10 percent for left lower extremity radiculopathy associated with lumbosacral strain with DJD and DDD prior to October 25, 2012, in excess 20 percent from October 25, 2012 to November 14, 2016, and in excess of 40 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her friend ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1979 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The September 2008 rating decision provided a single 10 percent rating for bilateral radiculopathy of the lower extremities. A subsequent October 2010 rating decision provided separate 10 percent disability ratings for each of the lower extremities. The Veteran testified at a Board hearing at the RO in March 2011 before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This matter was previously before the Board in June 2011 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The required development has been completed and the Veteran's claims are now properly before the Board. FINDINGS OF FACT 1. Prior to October 25, 2012, the Veteran's lumbosacral disability manifests, at worst, with flexion to 35 degrees. 2. As of October 25, 2012, the Veteran's lumbosacral disability manifests with flexion to 30 degrees, but does not approximate unfavorable ankylosis of the entire thoracolumbar spine. 3. Prior to October 25, 2012, the Veteran's radiculopathy of the right and left lower extremities manifests with mild incomplete paralysis. 4. From October 25, 2012 to November 14, 2016, the Veteran's radiculopathy of the right and left lower extremities manifests with moderate incomplete paralysis. 5. As of November 14, 2016, the Veteran's radiculopathy of the right and left lower extremities manifests with moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to October 25, 2012, the criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2016). 2. As of October 25, 2012, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2016). 3. Prior to October 25, 2012, the criteria for a disability rating in excess of 10 percent for radiculopathy of the right and left lower extremities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). 4. From October 25, 2012 to November 14, 2016 the criteria for a disability rating in excess of 10 percent, but not higher than 20 percent, for radiculopathy of the right and left lower extremities, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). 5. As of November 14, 2016 the criteria for a disability rating in excess of 20 percent, but not higher than 40 percent, for radiculopathy of the right and left lower extremities, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Increased Disability Rating From June 3, 2008 to October 25, 2012 for Lumbosacral Strain The Veteran was originally granted service connection and assigned a 20 percent disability rating for a lumbosacral strain effective February 1987. On June 3, 2008, the Veteran filed a claim for an increased rating for this disability. The Veteran's 20 percent disability rating was continued in a September 2008 rating decision. The Veteran's lumbar spine disability was rated 20 percent disabling under Diagnostic Code 5237, which pertains to lumbosacral or cervical strain, using the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted 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 rating of 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2 and Plate V. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). After review of the evidence, in consideration of the above criteria, the Board finds that the preponderance of the evidence is against a finding for a rating in excess of 20 percent for the Veteran's lumbosacral disability. In July 2008, the Veteran completed a Compensation and Pension (C&P) Examination regarding her lumbosacral disability. At this examination, the Veteran's thoracolumbar spine range of motion measurements showed flexion to 55 degrees with pain from 0 to 55 degrees, extension to 34 degrees with pain at the end, right lateral flexion to 25 degrees with pain at the end, left lateral flexion to 25 degrees with pain at the end, right lateral rotation to 25 degrees with pain at the end, and left lateral rotation to 15 degrees with pain at the end. There was no additional limitation with repetitive use testing. Another C&P Examination was given to Veteran in April 2009, also addressing the Veteran's lumbosacral disability. The Veteran's range of motion measurements included flexion to 70 degrees, extension to 20 degrees, left lateral flexion to 38 degrees, right lateral flexion to 13 degrees, left lateral rotation to 38 degrees, and right lateral rotation to 30 degrees. There was objective evidence of pain during range of motion testing. During repetitive motion testing, the Veteran demonstrated additional functional loss with flexion to 60 degrees and extension to 15 degrees. The VA examiner noted there was no ankylosis present in the thoracolumbar spine, and no history of incontinence. The Veteran completed an additional C&P Examination in October 2010. At this examination, the Veteran's thoracolumbar spine range of motion measurements showed flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. There was no additional range of motion limitations with repetitive use testing. The VA examiner noted there was no ankylosis of the thoracolumbar spine, and no history of incontinence. The Veteran reported a specific incident of incapacitation in July 2010, noting she was in bed a few days, but the Veteran's bedrest was not prescribed by a doctor. As noted above, a 40 percent disability rating is not warranted unless the probative medical evidence of record establishes forward flexion of the thoracolumbar spine is limited 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. In the present case, the Veteran demonstrated forward flexion to at least 35 degrees, and has not been diagnosed with ankylosis of the thoracolumbar spine. The Board has considered whether a disability rating higher than 20 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The April 2009 VA examiner indicated that the Veteran was observed after repetitive use testing of at least three repetitions, however the additional functional loss only limited to 60 degrees flexion and 15 degrees extension, and did not meet the schedular criteria for a 40 percent disability rating. Thus, any additional limitation due to pain cannot be established to more nearly approximate a finding of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. 32. Even when considering the Veteran's pain and functional loss, her disability is not more closely described as limitation of forward flexion to 30 degrees or less or favorable ankylosis. She does not have ankylosis because she retains motion in her thoracolumbar spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The provisions for evaluating intervertebral disc syndrome are not applicable for the Veteran's service-connected lumbar spine disability because the evidence of record does not document any incapacitating episodes with bed rest prescribed by a physician. The Veteran's April 2009 and July 2008 examinations, and the Veteran's medical records, are silent for episodes of hospitalization or incapacitation due to a lumbosacral disability. The Veteran's October 2010 examination reports a single incident of incapacitation lasted a few days and was not prescribed by a doctor. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. At the April 2009 examination the Veteran did not indicate any bladder or bowel dysfunction associated with her thoracolumbar spine disability and none has been diagnosed. In testimony, the Veteran acknowledges an increase in urination urgency, but denied a history of loss of bladder control. The Board acknowledges the Veteran's testimony, and testimony of the Veteran's friend, that her service-connected lumbosacral disability warrants a disability evaluation in excess of 20 percent from June 3, 2008 to October 25, 2012. The lay descriptions of the Veteran's subjective symptoms of pain on movement, radiating pain, instability, and stiffness are competent and credible. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran, and her friend, in this case cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of her service-connected lumbosacral disability as the Veteran, nor the author of submitted buddy statement, does not have the necessary expertise, training, or skills needed to make such a determination. In sum, the Board finds that the 20 percent rating contemplated functional loss due to pain, excess fatigability, and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination during this period of appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. The Board finds that the most probative evidence of record does not support a disability evaluation in excess of 20 percent for the Veteran's lumbosacral disability during this time period. See Fenderson, 12 Vet. App. 114. The preponderance of the evidence is against her claim for an increased disability evaluation. 38 C.F.R. § 4.3. Increased Disability Rating From October 25, 2012 for Lumbosacral Strain In a November 2012 rating decision, the Veteran's disability rating for her service-connected lumbosacral disability was increased 20 percent to 40 percent in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5237. After review of the evidence, in consideration of the above detailed rating criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5237, the Board finds that the preponderance of the evidence is against a finding for a rating in excess of 40 percent for the Veteran's lumbosacral disability. In an October 2012 C&P Examination, the Veteran's range of motion measured, flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran did not have additional limitation of range of motion after repetitive-use testing. The VA examiner noted the Veteran did not have intervertebral disc syndrome and incapacitating episodes. Another C&P Examination was given to Veteran in November 2016, also addressing the Veteran's lumbosacral disability. The Veteran's range of motion measurements included flexion to 15 degrees, extension to 10 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees. There was objective evidence of pain during range of motion testing. The VA examiner noted the Veteran did not have intervertebral disc syndrome and incapacitating episodes. As noted above, a 50 percent disability rating is not warranted unless the probative medical evidence of record establishes unfavorable ankylosis of the thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran's limitation cannot be more closely described as unfavorable ankylosis of the entire thoracolumbar spine. As she is able to move her spine, by definition she does not have ankylosis. See Dinsay, 9 Vet. App. at 81; Lewis, 3 Vet. App. 259. (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Board has considered whether a disability rating higher than 40 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App.at 206-07 (1995). The October 2012 and November 2016 VA examiners indicated that the Veteran was observed after repetitive use testing, and that there was no additional loss of function or range of motion after repetitive use. The November 2016 examiner also noted that pain may increase loss of function or range of motion after repeated use over time; however, the examiner noted that determining the limitation of function or range of motion would require speculation as this examination was not conducted during a flare up or after repeated use over time. Thus, any additional limitation due to pain cannot be established to more nearly approximate a finding of unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. 32. Even when considering the Veteran's pain and functional loss, her disability is not more closely described as unfavorable ankylosis of the entire thoracolumbar spine. She does not have ankylosis because she retains motion in her thoracolumbar spine. See Dinsay, 9 Vet. App. at 81; Lewis, 3 Vet. App. 259. The provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected lumbar spine disability because the evidence of record does not document any incapacitating episodes with bed rest prescribed by a physician. The Veteran's October 2012 and November 2016 examinations specifically state the Veteran does not have intervertebral disc syndrome. See 38 C.F.R. § 4.71a , Diagnostic Code 5243. Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. The October 2012 and November 2016 examinations do not establish a history of bowel or bladder impairment. The Veteran's medical records are also silent for bowel impairment. In sum, the Board finds that the 40 percent rating contemplated functional loss due to pain, excess fatigability, and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination during this period of appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. The Board finds that the most probative evidence of record does not support a disability evaluation in excess of 40 percent for the Veteran's lumbosacral disability during the appeal period. See Fenderson, 12 Vet. App. 114. The preponderance of the evidence is against her claim for an increased disability evaluation. 38 C.F.R. § 4.3. Increased Disability Rating From June 3, 2008 to October 25, 2012 for Radiculopathy of the Right and Left Lower Extremities The Veteran was granted service connection for bilateral radiculopathy and assigned a 10 percent disability, effective August 18, 2006, in a March 2007 rating decision. A September 2008 rating decision continued a single 10 percent rating for bilateral radiculopathy of the lower extremities. A subsequent October 2010 rating decision provided separate 10 percent disability ratings for each of the lower extremities. Diagnostic Code 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-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 to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A July 2010 VA examination regarding the Veteran's radiculopathy indicates decreased pain sensations in the right and left foot, normal muscle tone, active movement against some resistance, no muscle atrophy in the lower extremities, and no gait abnormality. Left lower extremity nerve condition studies were within normal limits. Electromyography testing performed on October 5, 2010 did not show positive result for radiculopathy in the lower extremities. The Veteran's medical records during this period confirm a diagnosis of lower extremity radiculopathy but do not establish "moderate" incomplete paralysis. The Veteran's sign and symptoms of lower extremity radiculopathy do not more closely approximate "moderate" incomplete paralysis as required for a 20 percent disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Based on review of the evidence of record, the Board finds that the subjective and objective evidence does not support a disability rating in excess of 10 percent for radiculopathy of the right or left lower extremity from June 3, 2008 to October 25, 2012. Increased Disability Rating From October 25, 2012 to November 14, 2016 for Radiculopathy of the Right and Left Lower Extremities At an October 25, 2012 examination, the Veteran did not show any signs of muscle atrophy, and did have normal muscle strength in the right and left lower extremities. However, the examiner did note constant severe pain in the right and left lower extremities due to radiculopathy. The examination also detailed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the lower extremities. In summary, the VA examiner noted the Veteran's radiculopathy to be moderate in both the Veteran's right and left side. The Veteran's medical records during this period confirm a diagnosis of lower extremity radiculopathy, but do not establish "moderate" incomplete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Based on review of the evidence of record, the Board finds that the subjective and objective evidence does support a disability rating of "moderate" for radiculopathy of the right or left lower extremity for the period of October 25, 2012 to November 14, 2016. Entitlement to a disability rating of 20 percent for radiculopathy of the right and left lower extremities is granted for the period of October 25, 2012 to November 14, 2016. Increased Disability Rating From November 14, 2016 for Radiculopathy of the Right and Left Lower Extremities The Veteran completed a C&P examination on November 14, 2016. At the examination the Veteran did not show any signs of muscle atrophy, tested normal for deep tendon reflex, and did have normal muscle strength in the right and left lower extremities. However, the examiner did note moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity. In addition, the Veteran tested positive for severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in the left lower extremity. The Veteran's medical records during this period confirm a diagnosis of lower extremity radiculopathy, but do not establish muscle atrophy as required for a "severe" rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. However, the Veteran's medical records do indicate the Veteran suffered daily throbbing pain, instability, and swelling in her right and left lower extremities. Medical treatment records detail disabilities of the right and left lower extremities, increasing in severity, that often forced the Veteran to crawl around her home due to pain and instability in her legs and feet. Based on review of the evidence of record, the Board finds that the subjective and objective evidence does support a disability rating of "moderately severe" radiculopathy of the right or left lower extremity as of November 14, 2016. Entitlement to a disability rating of 40 percent for radiculopathy of the right and left lower extremity is granted for the period of October 25, 2012 to November 14, 2016. Extraschedular Consideration As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If her disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321 (b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In regard to the first step of Thun, the Veteran's lumbosacral disability and related radiculopathy are manifested by limitation of motion, pain, numbness, and functional impairment, which are symptoms specifically addressed by the rating criteria. In short, there is nothing exceptional or unusual about the Veteran's disabilities because the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115. As the first inquiry of the Thun analysis has not been met, the other inquiries do not need to be addressed. In turn, remand for referral for extraschedular consideration is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative joint disease (DJD) and degenerative disc disease (DDD) prior to October 25, 2012, and in excess of 40 percent thereafter is denied. Prior to October 25, 2012, entitlement to an disability rating in excess of 10 percent for right lower extremity radiculopathy associated with lumbosacral strain with DJD and DDD is denied. Prior to October 25, 2012, entitlement to an disability rating in excess of 10 percent for left lower extremity radiculopathy associated with lumbosacral strain with DJD and DDD is denied. From October 25, 2012 to November 14, 2016, entitlement to disability rating of 20 percent, but not higher, for right lower extremity radiculopathy associated with lumbosacral strain with DJD and DDD is granted, and a disability rating of 40 percent, but not higher, is granted thereafter. From October 25, 2012 to November 14, 2016, entitlement to disability rating of 20 percent, but not higher, for left lower extremity radiculopathy associated with lumbosacral strain with DJD and DDD is granted, and a disability rating of 40 percent, but not higher, is granted thereafter. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs