Citation Nr: 1117452 Decision Date: 05/06/11 Archive Date: 05/17/11 DOCKET NO. 05-24 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for degenerative disease with progression of the lumbar spine (previously characterized as residuals of low back strain) (hereinafter referred to as "a low back disability"). 2. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29 for hospitalization in excess of 21 days between December 4, 2003 and January 6, 2004 for a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2004 and March 2006 by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO). During the current appeal, and in October 2010, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. The transcript from that hearing has been associated with the claims file and has been reviewed. FINDINGS OF FACT 1. The Veteran's service-connected low back disability is manifested by chronic pain resulting in forward flexion limited to 30 degrees. However, ankylosis of any part of the thoracolumbar spine, chronic neurologic disability manifestations, and incapacitating episodes of intervertebral disc syndrome requiring physician-prescribed bed rest have not been shown. 2. The condition for which the Veteran was hospitalized from December 4, 2003, to January 4, 2004, was not a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for degenerative disease with progression of the lumbar spine (previously characterized as residuals of low back strain) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2010). 2. The criteria for the assignment of a temporary total rating based on hospital treatment or observation in excess of 21 days between December 4, 2003 and January 6, 2004 for a service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. § 4.29 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a December 2005 letter, the RO informed the Veteran of its duty to assist him in substantiating his increased rating claim under the VCAA, and the effect of this duty upon his claim. This correspondence in particular notified the Veteran of the type of evidence that may reflect a worsening of his service-connected low back disability, including ongoing treatment records; statements from his treating physician(s); his own statements as to the frequency and severity of his symptoms; and statements from individuals who are able to describe from their knowledge and personal observations the manner in which his disability has worsened. Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice in an increased rating claim need not be "veteran specific"). Further, the timing defect of the December 2005 correspondence was cured by the RO's subsequent readjudication of the Veteran's increased rating claim and issuance of a supplemental statement of the case, most recently in August 2009. Thus, the Board concludes that all required notice has been given to the Veteran. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Any defect as to notifying the Veteran of how effective dates are assigned is harmless as the Board, for the reasons set forth below, is denying his increased rating claim. See Dingess, 19 Vet. App. at 484. In any event, the Veteran has exhibited his awareness of the type of evidence necessary to establish a claim for a higher rating under the relevant diagnostic code for spine disabilities. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Throughout this appeal, the Veteran has discussed the symptoms of his back disability, with particular emphasis on the impact that it had on his ability to perform his daily activities, particularly his employment. Such assertions are found to demonstrate an understanding of the need to provide evidence regarding the impact of his service-connected lumbar spine disability on his everyday life. Moreover, in an April 2008 letter, the RO informed the Veteran of what the evidence must show to establish entitlement to a temporary total evaluation. The RO explained what information and evidence he must submit and what information and evidence will be obtained by VA. He was specifically advised that the assignment of a temporary total disability rating was based on evidence showing the need for hospitalization for a service-connected disability for at least 21 days. [The timing defect of the April 2008 correspondence was cured by the RO's subsequent readjudication of the Veteran's appeal and issuance of a supplemental statement of the case in December 2008.] The Board finds that any defect in terms of the adequacy of this notice has not been harmful to the Veteran. Indeed, throughout the current appeal, the Veteran has exhibited his awareness of the type of evidence necessary to substantiate this issue. Specifically, he has consistently argued that he was hospitalized in excess of 21 days between December 4, 2003 and January 4, 2004 for his service-connected low back disability. Sanders, supra. The purposes of the notice requirements have not been frustrated, and any error in failing to provide additional notice has not affected the essential fairness of the adjudication process because the Veteran had actual knowledge of what information and evidence is needed to establish both of the issues on appeal. The Board finds VA has satisfied its duty to assist the Veteran in the development of the issues on appeal. His in-service and pertinent post-service treatment reports are of record, and the RO obtained VA examinations in 2006, 2008, and most recently in October 2010-pertinent to his low back. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are more than adequate, as they provide sufficient detail to rate the Veteran's service-connected low back syndrome, including a thorough discussion of the effect of pertinent symptoms on his functioning. A VA examination would not assist in the rendering of a determination of the Veteran's temporary total rating claim because the objective findings shown on any such evaluation are not relevant to the question of whether the Veteran was hospitalized for a service-connected disability for a period in excess of 21 days between December 4, 2003 and January 6, 2004. Thus, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. II. Increased Rating Claim Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. 38 C.F.R. § 4.71a. Here, by a November 2010 rating action, the RO redefined the Veteran's service-connected low back disability as degenerative disease with progression of the lumbar spine but continued the previously-assigned 40 percent evaluation for this disorder under DC 5237 for lumbosacral or cervical strain. Under DC 5237, a 40 percent evaluation for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is granted with evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71. Normal forward flexion of the thoracolumbar segment of the 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 rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V. Any associated neurological abnormalities (e.g., bowel or bladder impairment) are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. The claims file is extensive and consists of four volumes of evidence submitted by the Veteran in connection with various claims. The medical evidence covers a period from 1973 to 2010, and it is clear upon a review of the record that the Veteran has suffered several intervening injuries to his back following his separation from service. In June 1973 he injured his back in a motor vehicle accident and a laminectomy was subsequently performed in November 1973 for herniated nucleus pulposus. Following his 1973 back injury, the Veteran required a second laminectomy for progressively worsening symptoms associated with degenerative disc disease. In 1982 and 1983, the Veteran sustained back injuries in work-related accidents and underwent at least one additional surgery. Since then, the Veteran has been treated on a continual basis for chronic low back symptoms. In connection with the current claim for increase which was received in June 2005, the Veteran submitted a medical opinion from his primary care physician dated in May 2005. This physician noted treatment of the Veteran for many years for severe degenerative disc disease with facet arthropathy of the lumbar spine. The Veteran was noted to be totally incapacitated by the condition for 2-4 days on a weekly basis. The examiner indicated that the Veteran's problems initially started as a severe musculo-ligamentous sprain to the spine that over the years and had degenerated to the point where he now had marked, well-documented, degenerative disc disease of the spine with arthritic changes and radiculopathy. Also of record is a January 2006 office note from a second private physician indicating the Veteran had significant limitation of motion of the lumbar spine and decreased reflexes in the lower extremities. Radiographs of the lumbar spine showed disc degenerative with spurs and facet arthritis. The Veteran underwent VA examination in early 2006. His primary complaints were of radiating low back pain and spasms. He described the pain as constant and sharp and rated as 7-8/10. Precipitating factors included sitting, standing, and getting in and out of the tub. He reported flare ups of 4-5 times a week with 8-9 incapacitations over the last three months, lasting from 3-10 days. Treatment included using a back brace, TENS unit, and injections, none of which help. The pain was alleviated by lying on the floor in a semi-fetal position with pillows between his legs. The Veteran had difficulty with activities of daily living and was last gainfully employed in 1983. The examiner noted the Veteran's history of post-service back injuries and surgeries. The Veteran was ambulatory with a cane. Examination of the spine revealed normal curvature. Deep tendon reflexes were within normal limits for both lower extremities. Range of motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, rotation to 30 degrees bilaterally, and lateral flexion to 30 degrees, bilaterally. There was evidence of pain, fatigue, lack of endurance, incoordination, and weakness after four repetitions. A CT scan of the lumbar spine showed post surgical changes from laminectomy/laminotomy particularly on the left side at L5-S1 as well as extensive degenerative disc disease changes at L5-S1 with circumferential osteophyte and bilateral foraminal encroachment at L5-S1. The examiner concluded the Veteran's degenerative disc disease was not secondary to his service-connected back strain. The Veteran submitted letters from several private treating physicians, dated in April 2008, July 2008, and August, 2008. Collectively these doctors, noted the Veteran's history of chronic radiating low back pain and marked weakness of the lower extremities which they concluded had left him totally and permanently incapacitated. There were both radiographic and MRI evidence of degenerative disc disease and arachnoiditis. The clinical assessments included post lumbar laminectomy syndrome; chronic neuropathy pain; lumbar myofascial pain with multiple trigger points; lumbar facet-mediated pain at L3-4, L4-5, and L5-S1; arachnoiditis; and degenerative arthritis of the lumbar spine. During VA examination in September 2008, the Veteran complained of pain and tingling radiating down both legs, stiffness, and weakness. He described the intensity of the pain as 7/10. The pain increased to 10/10 with any kind of movement including dressing and otherwise caring for himself. The Veteran reported that medications have helped slightly, but hydrotherapy gave the most complete relief. He also reported constant numbness in both legs and frequent constipation secondary to the pain medication. The Veteran normally used a cane and a brace and could walk at least 100 yards. He had no doctor-prescribed bed rest in the last 12 months. On examination the Veteran had 20 degrees of flexion at the waist when standing. The curvature of the spine was normal and his gait was described as short steps with rhythmical motion of the limbs and spine. Range of motion testing revealed 40 degrees of forward flexion and 0 degrees of lumbar extension. Lateral bending was to 20 degrees on both sides and rotation was to 20 degrees on both sides. There was pain throughout all ranges of motion. However range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. During neurological examination the Veteran complained that he could barely feel pain or touch stimuli at various locations on both lower extremities. Motor examination revealed no signs of atrophy or circumferential difference in the extremities. The Veteran had normal strength, movement, muscle tone, and reflexes. Lasegue's sign was positive in that the Veteran could not raise his legs more than 30 degrees without pain. There was no evidence of vertebral fractures. There were no days of prescribed bedrest for intervertebral disc syndrome and no findings or history to suggest any bladder, bowel, or erectile dysfunction. Also of record is a letter from the Veteran's primary care physician dated in March 2009, noting the Veteran had been bed-bound for 10 weeks, at least once in the past 10 years due to chronic intractable back pain with post laminectomy syndrome. He stated that the Veteran averaged total incapacitation requiring bed rest at least one or more times a year over the past 10 years. The examiner then noted that over the past 6 months the Veteran had been totally incapacitated unable to function with even sedentary activities and barely able to take care of personal needs. The Veteran underwent VA examination in March 2010 to address whether his complaints of progressively worsening back pain and lower extremity weakness with a radiculopathy were at least as likely as not due to or the result of his service connected low back strain. The Veteran's primary complaints were of pain, fatigue, decreased motion, stiffness, and spasms. The pain was described as constant dull, sharp, and stabbing. It radiated from the low back into both legs and feet along with numbness and tingling. The Veteran also complained of urinary and bowel problems when in extreme pain as well as erectile dysfunction. He reported 2-3 incapacitating episodes per month lasting 2-6 days. He noted that he used a cane, brace, walker, and wheelchair. He was able to walk a 1/4 mile. Examination revealed posture, head position, and gait were all normal. There were no abnormal spinal curvatures. There was evidence of spasm and pain with motion, but no evidence of atrophy or weakness of the thoracic sacrospinalis. Motor examination of the hips, knees, ankles, and great toes was normal at 5/5. Muscle tone was also normal with no evidence of atrophy. Sensory examination showed some loss of pinprick and light touch sensation. Reflex examination revealed both knee and ankle jerks were normal as was Babinski testing. The Veteran had 35 degrees of forward flexion and 10 degrees of lumbar extension. Lateral flexion was to 20 degrees on both sides and rotation was to 20 degrees on both sides. There was pain throughout all ranges of motion. Lasegue's sign was negative and there was no evidence of vertebral fracture. X-rays of the lumbar spine showed degenerative changes at L5-S1. The pertinent diagnosis was history of chronic lumbosacral strain - service-connected at 40 percent. After reviewing the claims file, the examiner concluded that the Veteran's radiculopathy was less likely as not (less than 50/50 probability) caused by or a result of his originally diagnosed low back strain, which was related to an altercation in the service. He explained that lumbar strains are related to injured muscles, not injured or damaged nerves and therefore do not cause radiculopathy. He then noted the Veteran's history of a motor vehicle accident in 1973 that resulted in a L5-S1 herniated disc and which was subsequently treated by an initial laminectomy in 1973, followed by another laminectomy. The examiner further explained that the Veteran's herniated disc causes an impingement on the nerve roots (per myelogram), resulting in radiculopathy which causes referred pain down into the legs. The examiner concluded that it appeared that the herniated disc sustained as a result of the Veteran's car accident was the cause of his radiculopathy, not his service-related low back strain, which caused no neurological symptoms per the historical data. During the VA neurological portion of the examination the Veteran's chief complaints were of constant back pain, which began following an in-service injury and later began to radiate down his bilateral legs. Motor examination revealed normal strength, muscle tone, and bulk. Sensory examination revealed loss of light and deep sensation throughout the legs following no specific dermatomal distribution. All reflexes were normal. The examiner referred to previous radiological findings consistent with post surgical changes from laminectomy/laminotomy, particularly on the left side at L5-S1. There were extensive degenerative disc disease changes at L5-S1 with a circumferential osteophyte and bilateral foraminal encroachment at L5-S1. A July 2010 outpatient treatment record shows the Veteran was seen in a VA emergency room for an exacerbation of back pain. He essentially reported that while hydrocodone helped to control his severe back pain, periodically he had days when the pain flared up worse and the current regimen did not control it. Also of record is a September 2010 from the Veteran's primary care physician, noting that the Veteran's long-term prognosis was quite poor with no hope for significant improvement and that he was totally disabled. The most recent treatment record is an October 2010 VA examination report, which contains clinical findings similar to those from the March 2010 VA examination. The Veteran complained of flares of severe lower back pain every 2-3 weeks and lasting 3-7 days. He treats the pain with bedrest, heat, cold, pain pills, and water therapy. He reported 30 days of incapacitation in the last 12-month period due to intervertebral disc syndrome. He also complained of fecal incontinence and urinary urgency when incapacitated with low back pain. The Veteran was unable to walk more than a few yards. On examination the Veteran had a slow, guarded, antalgic gait using a walker. There were no abnormal spinal curvatures and no thoracolumbar spine ankylosis. He had 30 degrees of forward flexion and 10 degrees of lumbar extension. Lateral flexion was to 10 degrees on both sides and rotation was to 10 degrees on both sides. There was pain throughout all ranges of motion, but no additional limitations after three repetitions of range of motion. Reflex examination findings were normal and motor examination was normal at 5/5. However sensory examination showed decreased vibration, pinprick, and light tough sensation in the left lower extremity from the knee to the foot. The diagnosis was degenerative lumbar disc disease with progression and bilateral lower extremity radiculopathy, moderate in severity. Applying the facts in this case to the criteria set forth above, the Board finds that a rating in excess of 40 percent for the Veteran's service-connected low back strain disability have not been met. The recent 2010 VA examinations, discussed above, together with the remainder of the medical evidence of record, do not show ankylosis of the Veteran's thoracolumbar spine, much less unfavorable ankylosis, or a disability akin to an individual with ankylosis of the lumbar spine to warrant either a 50 or 100 percent rating under DC 5237. Also, the Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. It is not disputed that the Veteran has limitation of motion of the thoracolumbar segment of the spine and that there is significant pain on motion. However, neither the Veteran nor any examiner has established that pain or flare-ups result in functional loss that would equate to ankylosis of the lumbar spine. While range of motion is severely restricted, the Veteran retains a measurable range of motion of the lumbar spine of at least 30 degrees forward flexion. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for the assignment of a higher rating under these circumstances. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the 40 percent disability rating adequately compensates him for any painful motion and functional loss. The Board has also considered whether an increased evaluation is in order in this case when separately evaluating and combining the orthopedic and neurologic manifestations of the Veteran's lumbar spine disability. First, however, while some sensory weakness of the Veteran's legs has been shown, during the current appeal and specifically by a May 2010, the RO denied service connection for such neurological deficits of the Veteran's lower extremities. The Veteran has not appealed that determination. Second, bowel and bladder dysfunction associated with the service-connected low back disability have not been shown. Third, although the record does reflect evidence of degenerative disc disease, a higher disability rating based on intervertebral disc syndrome under DC 5243 is not warranted. In this regard, the Board acknowledges the Veteran's accounts of chronic back pain with flare-ups and multiple incapacitating episodes as well as the private physician's May 2005 statement that the Veteran was totally incapacitated 2-4 days per week on a weekly basis. Importantly, however, the doctor did not specifically state that such "incapacitation" necessitated bed rest or that the Veteran experienced such "incapacitation" a such frequency throughout the past year. In addition, in a March 2009 letter, this doctor clarified only that the Veteran averaged total incapacitation requiring bed rest at least one or more times a year over the past 10 years. Furthermore, at the subsequent September 2008 VA examination, the Veteran was specifically found to have no doctor-prescribed bedrest in the last 12 months. As such evidence does not illustrate doctor-prescribed bedrest due to incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, the next higher rating of 60 percent for the service-connected low back disability is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Finally, pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the lumbar spine, but the required manifestations have not been shown in this case. Moreover, there is no evidence that the service-connected disability required hospitalization at any pertinent time during his appeal and VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Evidence in the claims file reveals that the Veteran is currently unemployed and last worked in 1983 due in part to his service-connected low back disability. While the Board is sympathetic to the difficulties that the Veteran's low back disability causes him in maintaining employment, the evidence does not reflect that the average industrial impairment he suffers is in excess of that contemplated by the assigned evaluation, or that application of the schedular criteria is otherwise rendered impractical. The Board does not dispute the Veteran's contentions that his disability has caused him to alter his lifestyle and restrict his activities. Even so, such complaints have been taken into consideration in the decision to assign the current 40 evaluation. In other words, the regular schedular standards contemplate the symptomatology shown. Accordingly, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has also considered the Veteran's assertion that he is no longer able to work due, in part, to his service-connected back disability. Such a statement is sufficient to raise a claim for a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447, 449, 454 (2009). Review of the claims file reveals, however, that, in December 2008 and May 2010 rating actions, the RO explicitly denied the issue of entitlement to a TDIU. The Veteran has not expressed disagreement with those decisions. Thus, no further discussion of entitlement to a TDIU is necessary. The Board has also considered the Veteran's testimony provided during his hearing in October 2010. At that time, he essentially reiterated previously submitted information regarding his symptoms and complaints made during VA examinations and outpatient evaluations. It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints concerning his lumbar spine or the sincerity of his beliefs concerning the gravity of his symptoms. But inasmuch as he is not competent to identify a specific level of disability as determined by the appropriate diagnostic codes, there is no means to increase the rating based on the medical evidence currently of record, especially because none of the other codes of the rating schedule provide a basis for the application of a higher rating. The current level of disability shown is encompassed by the rating currently assigned. With due consideration to the provisions of 38 C.F.R. § 4.7, a higher evaluation is not warranted at any time during the current appeal. See Hart, supra. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's increased rating claim. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). III. Temporary Total Rating Claim The Veteran asserts that he is entitled to a temporary total rating based upon a period of inpatient treatment for a service-connected disability that he received from December 4, 2003 to January 6, 2004. He is currently service connected for a low back disability, fungal infection and pseudofolliculitis barbae of the face, pes planus with calluses, and residuals of a testicle injury. A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. 38 C.F.R. § 4.29(b). VA outpatient treatment reports show that on December 2, 2003, the Veteran was seen on an emergency basis for severe pain and swelling of the left knee. He reported that several months prior he was getting out of the bathtub when his left leg gave out. Since that time he has had trouble with weightbearing, swelling, and pain of the knee and thigh. He noted that outside doctors performed an MRI and recommended knee replacement, but he decided to wait. The Veteran's history of chronic back pain was also noted. He had been stable since a laminectomy in 1982 and denied any recent increase in his back pain. The examining physician determined that in view of the significant effusion and severe pain the Veteran should be admitted to the hospital for probable aspiration of the left knee. A physical therapy consult was also requested along with an X-ray of the left knee. Thus, the Veteran was admitted on December 4, 2003, for degenerative joint disease of the left knee and accepted for therapy services, consisting of moist heat, ultrasound, and quad exercises. He was also instructed on use of a walker and cane and provided a hinged-type brace. These records also show that, during his period of inpatient treatment, he received some treatment with moist heat and massage for his service-connected back disability. He was discharged on January 6, 2004 with diagnoses of left knee pain related to degenerative joint disease with limited range of motion, essential benign hypertension, chronic low back pain with history of laminectomy, and mild anemia. The Veteran believes that, because of this treatment, he is entitled to a temporary total rating under 38 C.F.R. § 4.29. The Board acknowledges that the Veteran was hospitalized from December 3, 2003, to January 6, 2004, which is in excess of 21 days. However, he has not identified or submitted any evidence showing that his service-connected low back strain prompted this period hospitalization. Instead, it is clear from a review of the discharge summary that the Veteran was hospitalized between December 2003 and January 2004 for treatment of the nonservice-connected degenerative joint disease of his left knee. While the Veteran noted a history of back pain at the time he was admitted in December 2003 and received some heat/massage therapy for it during his hospital stay, the Board finds compelling the fact that these reports do not indicate that his service-connected back disability was a significant problem during the course of his hospitalization. In fact, no changes were made to the current treatment (including medications) used to manage his service-connected low back strain. Rather, practically all cited treatment and findings concerned his left knee arthritis. Consequently, the Board finds that the massage therapy-during the course of the Veteran's inpatient treatment of his non service-connected left knee arthritis-does not amount to hospitalization for the service-connected low back disability for a period in excess of 21 days. 38 C.F.R. § 4.29(b) (2010). As the Veteran's hospitalization for a period in excess of 21 days between December 4, 2003 and January 6, 2004 was not for a service-connected disability, the criteria for a temporary total rating under 38 C.F.R. § 4.29 have not been met. This claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER A disability rating in excess of 40 percent for degenerative disease with progression of the lumbar spine (previously characterized as residuals of low back strain) is denied. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29 for hospitalization in excess of 21 days between December 4, 2003 and January 6, 2004 for a service-connected disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs