Citation Nr: 1043167 Decision Date: 11/17/10 Archive Date: 11/24/10 DOCKET NO. 06-37 023A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for lumbar degenerative joint disease with intervebral disc syndrome (IVDS), formerly rated as lumbago with associated with degenerative disc disease, claimed as low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The claims file was then returned to the Agency of Original Jurisdiction (AOJ) as designated on the title page. By way of background, the Veteran's original February 2001 claim seeking service connection for lower back conditions was denied by a July 2001 rating decision. The Veteran perfected his appeal. In December 2003 the Board ordered a remand for further development. That development was sufficiently accomplished. In June 2005 the RO granted service connection for lumbago associated with degenerative disc disease and assigned a 20 percent evaluation. The Veteran disagreed with the evaluation as assigned and perfected his appeal. This claim is now before the Board. The the issues of entitlement to Individual Unemployability and entitlement to a pension have been raised by the record (July 2009 statement), but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT The Veteran's disability has not resulted in 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, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, or significant neurological impairment. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for lumbar degenerative joint disease with intervebral disc syndrome, formerly rated as lumbago with degenerative disc disease, have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-and post adjudication VCAA notice by letter, dated in April 2004 and May 2006. However, the notice did not include the type of evidence needed to substantiate the claims for increase, namely, evidence that the symptoms had increased. The notice did include the type of evidence needed to substantiate the underlying claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was informed that VA would obtain service medical records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtain the records on his behalf. The notice included the provisions for rating the disabilities and for the effective date of the claims. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statements of the case, dated in February 2007, April 2008, and February 2010. Mayfield v. Nicholson, 499 F. 3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis). To the extent that the VCAA notice did not include the Diagnostic Codes under which the claimant is rated until after adjudication, including the supplemental statements of the case, at this stage of the appeal, when the Veteran already has notice of the pertinent Diagnostic Codes and rating criteria as provided in the statement of the case and the supplemental statements of the case, there is no reasonable possibility that further notice of the exact same information would aid in substantiating the claim. Further, the Veteran demonstrated actual knowledge of the criteria and of the evidence needed to substantiate his claim for an increased evaluation, namely, as demonstrated by his February 2006 statement, disagreeing with the evaluation, in which he stated that his lumbar spine was worse than rated and his April 2008 statement in which he noted more medical evidence was forthcoming regarding the severity of his lumbar spine disorder. As the content error did not affect the essential fairness of the adjudication of the claim for increase, the presumption of prejudicial error as to the content error in the VCAA notice is rebutted. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim); Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. The Veteran was afforded the opportunity to testify at a personal hearing at the RO before the undersigned law judge. The RO obtained his service treatment records, all VA records, and treatment records from a private chiropractor, as well as the medical documents underlying the Veteran's application for Social Security disability benefits. The Veteran has not contended - nor is there any record in the file to show - that there has been a material change in the disability since the March 2009 examination to warrant a reexamination. 38 C.F.R. § 3.327(a). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. General Rating Principles Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial ratings case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). When rating a disability of the musculoskeletal system, functional loss due pain, weakened movement, and fatigability are factors to be considered. 38 C.F.R. §§4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Rating Criteria for Disc Disease During the pendency of the appeal, the criteria for rating a disability of the spine were amended in September 2002 and in September 2003. The Board is required to consider the claim in light of both the old and new criteria to determine whether an increase is warranted. If the amended rating criteria are favorable to the claim, the amended criteria can be applied only from and after the effective date of the regulatory change. VAOPGCPREC 3-2000 (April 10, 2000): VAOPGCPREC 7-2000 (Nov. 10, 2003). For VA rating purposes, the normal ranges of motion of the thoracolumbar spine are forward flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, 30 degrees, and rotation, right and left, 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Old and New Criteria-Disc Disease Prior to September 2002, degenerative disc disease or intervertebral disc syndrome was rated under Diagnostic Code 5293. Prior to September 23, 2002, intervertebral disc syndrome productive of mild impairment warranted a 10 percent rating; moderate impairment with recurring attacks warranted a 20 percent rating; severe impairment with recurring attacks, with intermittent relief warranted a 40 percent rating; and pronounced impairment, with 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, little intermittent relief warranted a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293. For a lumbosacral strain, with characteristic pain on motion, a 10 percent rating was warranted; with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, a 20 percent rating was warranted. A severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion warranted a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (effective before September 23, 2002). Under the revised provisions of Diagnostic Code 5293, in effect from September 23, 2002 to September 25, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Effective September 26, 2003, the rating criteria applicable to diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended by VA. These amendments included the changes made to the criteria used to evaluate intervertebral disc syndrome, which had become effective in the previous year. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The criteria for evaluating intervertebral disc disease were essentially unchanged from the September 2002 revisions, except that the Diagnostic Code for intervertebral disc disease was changed from 5293 to 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Specifically, the September 2002 intervertebral disc syndrome changes which were incorporated into the September 2003 amendments stipulate that intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 10% rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20% rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1) under the Incapacitating Episode Formula defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. Old Criteria and the General Rating Formula for Diseases and Injuries of the Spine (Chronic Low Back Pain) Under the provisions of Diagnostic Code 5292, in effect before September 26, 2003, a 10 percent rating is warranted for slight limitation of motion of the lumbar spine. A 20 percent evaluation is assigned for moderate limitation of motion of the lumbar spine. The highest rating allowable pursuant to this diagnostic code, 40 percent, will be awarded upon evidence of severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Finally, the diagnostic criteria pertinent to spinal disabilities in general were revised effective September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, Diagnostic Codes 5237, 5238, 5243 (2004). Under these relevant provisions, lumbosacral strain or spinal stenosis warrant a 20 percent evaluation where there is 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 is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. See Diagnostic Code 5237 for lumbosacral strain; DC 5238 for spinal stenosis; and DC 5243 for intervertebral disc syndrome. In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service- connected disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for intervertebral disc syndrome based on incapacitating episodes remain the same as those effective September 23, 2002, as outlined above. As discussed below, the preponderance of the competent clinical evidence of record is against an increased evaluation for the disability at issue based on incapacitating episodes of intervertebral disc syndrome. Similarly, the competent clinical evidence of record is against an increased evaluation for the Veteran's low back disability based on the general rating formula for disease or injury of the spine, effective September 26, 2003, for Diagnostic Codes 5237, 5238, and 5243, as will be discussed below. Analysis Service treatment records contain several complaints of back ache in 1969 and 1970. The spine was not tender and the assessment was strain. Upon separation in 1971, his spine was assessed as clinically normal. Private treatment reports are of record dated August 1985 that describe chiropractic manipulations of the Veteran's low back and note he had experienced low back pain for years. The Veteran was diagnosed with low back pain and degenerative disc disease in a January 1998 VA x-ray study. A May 2000 lumbar spine MRI study found panlumbar disc disease with narrowing of all discs. No canal stenosis was found. The physical therapist noted his complaints of pain during September 2000 and November 2000 sessions, and that his range of motion for flexion extension was within normal limits. A November 2000 VA pain follow-up evaluation noted he had normal toe to heel walk. The Veteran submitted his claim in February 2001. A July 2001 VA treatment report noted his low back was tender and he was unable to bend to touch his toes. However an October 2001 treatment report noted he could bend to touch his toes. A March 2003 report again noted tenderness along the lumbar spine with tingling in the extremities. Following the remand order, the Veteran was afforded an April 2004 VA spine examination. The claims file was reviewed. The Veteran reported constant pain and a flare-up every 3 to 4 days. Though he took aspirin for the flare-ups, he took no medication for his back. He described his ability to sit and stand as limited to 30 minutes and that he could only lift 10 pounds. Upon objective examination, the examiner measured his flexion to 60 degrees, extension to 25, right lateral bend 25, left lateral bend 25, right lateral rotation 30, left lateral rotation to 30. He could walk on heels and toes without difficulty. He was unable to walk heel to toe due to recent toe surgery; however there was no weakness. A May 2004 x-ray study also noted degenerative changes. In June 2005 the RO assigned a 20 percent evaluation under the Diagnostic Code 5292 for moderate limitation of motion of the lumbar spine, effective the date of claim, February 2001, and noted that there was no evidence of incapacitating episodes. Following the legislative changes in 2002 and 2003, the RO again evaluated the Veteran's lumbar disability at 20 percent under DC 5243. The Veteran contends that the evaluation assigned for his back disability does not accurately reflect the severity of that disability. The Board finds that the 20 evaluation has been appropriate throughout the appeals period. Prior to September 2002, under Diagnostic Code 5292 the criterion for the next higher rating, 40 percent, was severe limitation of motion of the lumbar spine. The Board notes that in the rare range of motion testing documented in the file, specifically in the April 2004 VA examination following the remand order, the Veteran has demonstrated flexion to 60 degrees and extension of 25 and experiences pain but a nearly full range of motion upon lateral flexion in either direction. Although the Veteran reported limitations in the length of time he could sit or stand (30 minutes), he could perform his normal activities of daily living. Further, the Veteran had stated that other than aspirin for a flare-up, he took no medication for his lumbar spine. Veteran reported physical therapy was ineffective. VA treatment reports for the Veteran's lumbar spine were intermittent, though pain was routinely noted. Therefore, his disability cannot be rated as severe to establish a higher rating under Diagnostic Code 5293 before September 2002. Notably, however, he has not demonstrated any weakness, incoordination, fatigue, or other factors producing functional impairment, outside of pain. The Board finds that, even when functional impairment from pain is considered, in light of the substantial level of range of motion retained, the limitation of lumbar spine motion is most accurately characterized as no more than moderate in severity, warranting a 20 percent evaluation under Diagnostic Code 5292. See Deluca v. Brown, 8 Vet. App. 202, 206-207 (1995). There are no other relevant pre-amended code sections for consideration here. Indeed, as the medical evidence does not establish ankylosis, DCs 5286 and 5289 are not for application and there were no reports of incapacitating episodes requiring bedrest prescribed by a physician. Following the April 2004 VA examination, the Veteran sought VA medical treatment for several disorders, including his non- service connected cervical spine. His neck experienced pain and muscle spasms and these cervical spine muscle spasms ran down to the lower back; however muscle spasms were not attributed to his lumbar spine. See also February 2005 Primary Care. Tenderness in lumbar spine was found in VA treatment in July 2004. Pain in the lumbar spine was noted repeatedly and was well established in the record. The Veteran had private chiropractic treatment from August to December 2006. He reported sharp pain on motion and that the pain radiated into the left leg. The private chiropractor noted decreased range of motion for the lumbar spine; however no numeric measurement of the Veteran's range was found in the reports. In July 2008 the Veteran underwent a lumbar spine MRI study. The impression was lumbar scoliosis without subluxation and severe degenerative disc disease with mild bilateral forminal narrowing and disc bulges. In March 2009 the Veteran was afforded a VA orthopedic examination. The claims file was reviewed. The Veteran reported being able to walk up to 3/4 a mile, though his left leg numbness made this difficult. He was able to climb stairs, drive, dress himself and do all the normal activities of daily living. He was not working, and reported spending some time in the yard doing some yard work. The Veteran denied having any surgery on his back, though in 2004 he had had steroid injections. He also denied taking any medication for his back. He reported occasionally using a cane. He described his lower back pain as a 4 out of 10, a dull ache. Daily he would experience a flare-up, with pain at a 8 out of 10, which was relieved by lying down. This flare-up would last a few hours. The examiner reported the Veteran walked slowly without a limp. He could walk on his toes and his heels and do a full squat. He was also able to get in and out of a chair without difficulty. His shoulders and hips were level and there was no muscle spasm. The examiner noted a slight loss of lordosis in the lumbar spine. He could flex forward 70 degrees, extend 10 degrees, lateral bend to the left 20 degrees, and lateral bend to the right 20 degrees. The examiner found no specific weakness, lack of endurance, fatigability, or lack of coordination. He noted that the Veteran reported that his back had worsened over time and that the Veteran was able to do all of the normal activities of daily living. In May 2009 the Veteran underwent a lumbar spine MRI study. That study revealed multiple bulges and stenosis. In a May 2009 VA primary care evaluation, the physician noted no spasm along the lumbar spine. In November 2009 his pain in the low back on walking and possible stenosis were noted. The Board observes that in July 2009 the RO granted service connection for lumbar degenerative joint disease with IVDS, left lower extremity, which had been claimed as left leg circulation problems. Under the general rating formula effective September 26, 2003, a 20 percent rating is warranted where the evidence reveals 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 is not greater than 120 degrees, or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain; DC 5238 for spinal stenosis; and DC 5243 for intervertebral disc syndrome. In order to be entitled to the next-higher 40 percent rating, the evidence must show favorable ankylosis of the entire thoracolumbar spine. The evidence of record in this case does not establish ankylosis or disability comparable therewith. Therefore, even considering additional functional limitation, there is no basis for assignment of a 40 percent evaluation. Also according to the current law, Diagnostic Code 5235 (vertebral fracture or dislocation), Diagnostic Code 5236 (sacroiliac injury and weakness), Diagnostic Code 5237 (lumbosacral or cervical strain), Diagnostic Code 5238 (spinal stenosis), Diagnostic Code 5239 (spondylolisthesis or segmental instability), Diagnostic Code 5240 (ankylosing spondylitis), Diagnostic Code 5241 (spinal fusion), Diagnostic Code 5242 (degenerative arthritis of the spine) (see also, Diagnostic Code 5003), Diagnostic Code 5243 (intervertebral disc syndrome) are evaluated under the general rating formula for diseases and injuries of the spine (unless intervertebral disc syndrome is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The general rating formula is applied 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: The Board concludes that the Veteran's range of motion findings are appropriately reflected by the 20 percent evaluation presently in effect. Indeed, there was no objective evidence demonstrating additional functional limitation due to factors such as pain and weakness. The Board does acknowledge the Veteran's consistent complaints of low back pain and recognizes his report of flare-ups. It is also acknowledged that the Veteran had some limitations in walking, and sitting. However, the competent evidence does not objectively show additional functional limitation during the appeal period, precluding assignment of a higher evaluation. Further, the Veteran did not report any incapacitating episodes, requiring bed rest prescribed by a physician and treatment by a physician. Therefore the criteria for the next higher rating have not been meet under Diagnostic Code 5293 from September 2002 or under the Formula for Rating Intervertebral Disc Syndrome from September 2003. The Board is aware that the Veteran's private treating chiropractor (2006) reported decreased range of motion, but he also did not provide any measurements (e.g., flexion to x degrees) nor describe whether these findings were affected by pain, weakness, fatigability or incoordination following repetitive use. On the other hand, the VA examination provided measurements and detailed findings regarding the extent of the Veteran's disability. The VA examiner also stated there was no increased limitation of motion due to pain, weakness, fatigability, or incoordination following repetitive use. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here we find the March 2009 VA examination to be highly probative as it is the medical opinion of a competent expert, informed by review of the claims file, incorporating a highly detailed account of the Veteran's ranges of motion and other clinical findings, and is presented with a persuasive discussion of the examiner's rationale. For the above reasons, the preponderance of the evidence is against the claim for a rating higher than 20 percent under Diagnostic Code 5292, and under the current General Rating Formula and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, and the benefit- of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Rating Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 114 (2008). Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The Veteran has not reported any hospitalizations for his lumbar spine disability and throughout the entire record he has attributed his current lack of employment and his departure from his last job in 2001 to a variety of causes, to include his non- service-connected cervical spine disorder and headache disorder. In this case, the disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular criteria because the rating criteria reasonably describes the Veteran's disability level and the level of disability is contemplated by the Rating Schedule and the assigned schedular evaluation is therefore adequate and no referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is necessary. ORDER An initial rating in excess of 20 percent for lumbar degenerative joint disease with IVDS is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs