Citation Nr: 1121488 Decision Date: 06/02/11 Archive Date: 06/09/11 DOCKET NO. 08-09 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left leg disability. 2. Entitlement to service connection for a right leg disability. 3. Entitlement to service connection for a bladder disability. 4. Evaluation of lumbar disc disease, currently rated as noncompensable. 5. Entitlement to a 10 percent disability rating based on multiple noncompensable service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant had active service from November 2001 to May 2006. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was remanded by the Board for further development in December 2009. FINDINGS OF FACT 1. A left leg disability is not shown by the record. 2. A left leg disability is not due to a service connected disease or injury. 3. A right leg disability is not shown by the record. 4. A right leg disability is not due to a service connected disease or injury. 5. A bladder disability is not shown by the record. 6. A bladder disability is not due to a service connected disease or injury. 7. Lumbar disc disease is manifested by no incapacitating episodes and/or functional impairment. 8. The appellant's service-connected disabilities have not been shown to interfere with his ability to work. CONCLUSIONS OF LAW 1. A left leg disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §3.303 (2010). 2. A left leg disability is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2010). 3. A right leg disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §3.303 (2010). 4. A right leg disability is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2010). 5. A bladder disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §3.303 (2010). 6. A bladder disability is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2010). 7. Lumbar disc disease is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5243 (2010). 8. The criteria for a 10 percent rating for multiple noncompensable service-connected disabilities are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.324 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under the VCAA by letter dated in February 2007 and May 2008. The Board notes that the appellant is challenging the disability evaluation assigned following the grant of service connection for lumbar disc disease. In Dingess, the U.S. Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra. at 490-191. Thus, VA's duty to notify in this case has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. In connection with the current appeal, available service and private treatment records have been obtained. We note that the appellant has failed to appear for several scheduled examinations. In December 2009, the Board remanded this case for further development. In January 2010, the AOJ notified the appellant that an examination may be scheduled, and of the consequences for failure to report, including that the claim shall be rated based on the evidence of record or even denied. The record indicates that the appellant failed to report for the March 2010 examination. There is no indication that the correspondence was returned as undeliverable. The record contains no justifiable indication of the reason for the appellant's failure to appear for his VA examination(s). As such, as this appeal arises from his initial post-service claim for compensation, pursuant to 38 C.F.R. § 3.655(a), (b) (2010), the claim will be decided based on the evidence of record. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. SERVICE CONNECTION Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). The Court has also held that service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). When aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. The Board notes that 38 C.F.R. § 3.310 was amended on September 7, 2006. As the amendment is restrictive, it is to be applied prospectively; it is not for application in the present claim. The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disabilities were incurred while engaging in combat. The appellant has appealed the denial of service connection for left leg, right leg and bladder disabilities. After review of the evidence, the Board finds against the claims. Service treatment records reveal that in January 2002 the appellant fell in a fox hole and hit his back during basic training. In February 2002, he denied bladder changes and/or any radicular type symptoms. He also denied radiculopathy in March 2004. Back and bladder surgery is shown in November 2004. In November 2004, the appellant complained of right leg extremity tingling. In January 2005, the appellant was treated in Emergency for bladder and low back pain. A history of bladder surgery was noted. He complained of right leg pain that same month. He complained of continued numbness and tingling down the front of the right lower extremity with dull ache low back in February 2005. There were no bladder dysfunction complaints at that time. The appellant complained of radiating pain to his right and left leg in March 2005. He reported weak right leg in March 2005. The lower extremities were reported abnormal in December 2005. The appellant reported numbness or tingling in May 2006. In June 2006, the appellant reported pain in the lower back and shooting pain that radiates to the right leg. It was noted that he also had neurogenic bladder. An outpatient treatment record in July 2006 revealed a notation of neurological right leg weaker with impaired gait. In August 2006, minimal, if any, neurologic injury to motor function but may have a mild amount of bowel/bladder impairment was noted. The appellant reported in August 2006 that he injured his back when he fell down a fox hole during basic training. He reported that since he has had problems with his right lower extremity and bladder. He also reported continued back pains. He reported his bladder was very active and that he went 16-18 times per day. Examination revealed an old surgery scar on the back. There was no clubbing, cyanosis and/or edema of the extremities. Sensation to pinprick and light touch of the right lower extremity was decreased. Bladder issues of urgency and frequency with incontinence was noted. It was noted in May 2007 that there was no radiation of pain to the legs but the knees buckled intermittently when the appellant walked. Reflexes were 2+ and motor examination was unreliable due to pain. There was sensory patchy numbness of the right lower extremity L4-S1. He reported his bladder was very active and that he went 16-18 times per day. Urgency and frequency were impressed. It was noted in December 2008 that the appellant ambulated with a slight antalgic gait favoring the right side with external rotation at the hip during swing phase. In July 2009, it was noted that the appellant took medication for his bladder and that he was not having accidents anymore but that there was some hesitancy. Neurological examination revealed 4+/5 strength for the right leg throughout and 5/5 for the left leg. Chronic low back pain and probable slight neurogenic pain/slight conus or cauda injury, and neurogenic bowel/bladder were assessed. In the February 2010 VA compensation and pension opinion, it was noted that the appellant developed persistent low back pain without radiculopathy after a fall in basic training in 2001. After the second fall, he experienced sudden low back pain and urinary incontinence. It was noted that the appellant underwent surgery in November 2005 and that he has reported urinary frequency but no incontinence. Stream was noted as normal and there was no dysuria, infections, instrumentation, catheters and/or hesitancy. It was noted that he took no regular medication for his bladder. The appellant was followed by the VA medical center with occasional visits to the Spinal Cord Injury Clinic where no urinary incontinence or weakness in the lower extremities had been found only chronic low back pain. There was no difficulty with bowel control and no report of any difficulty with walking but back pain was noted. The appellant was found to have had normal voiding and no urinary incontinence at that time. He had some moderately severe lower back pain that did not radiate to the legs. It was noted that the legs sometimes buckle when walking and that the appellant ambulates with a cane. He also swam several days a week and worked security. It was noted that examination at the Spinal Cord Clinic showed giving way and weakness with both leg extension. Examination by MRI showed no evidence of changes in the spinal cord, only degenerative lumbar disc disease. Degenerative lumbar intervertebral disc disease with low back pain with no radiculopathy was diagnosed. The examiner stated that the original neurogenic bladder was due to injury of the nerves in the filum terminale from scarring related to the lumbar disc injury. However, currently, there is no evidence of any residual of filum terminale injury or of neurogenic bladder. In light of the evidence presented, the Board finds that the preponderance of the evidence is against the claims for service connection. In this regard, the Board notes that for veterans, basic entitlement to disability compensation derives from two statutes, 38 U.S.C. §§ 1110 and 1131- - the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the words: "For disability resulting from personal injury suffered of disease contracted in the line of duty. . . ." 38 U.S.C. §§ 1110, 1131 (2010). Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Here, the appellant has complained of bladder problems. He has also complained of leg weakness, tingling and numbness. We also note that there was a showing of neurological right leg weaker with impaired gait in July 2006 and that the lower extremities were reported abnormal in December 2005. However, the Board notes that the February 2010 VA examiner diagnosed degenerative lumbar intervertebral disc disease with low back pain with no radiculopathy. The examiner also opined that there was no evidence of any residual of filum terminale injury or of neurogenic bladder. We note that the appellant has refused to appear for several examinations and VA must base the decision on the evidence of record. 38 C.F.R. § 3.655. The duty to assist is not a one way street or a blind alley. The Board acknowledges the appellant's complaints concerning his bladder and legs. Although he is competent to report such, we do not find his assertions credible. Here, we are presented with numerous subjective complaints. However, the findings have been inconsistent or suspect and the appellant has declined further evaluation, even for treatment purposes. Based upon all the evidence of record, the chronicity, existence and etiology of bladder and lower extremity neuropathy may be reasonably questioned. Here, the most probative evidence consists of the VA opinion. Even the July 2009 medical report only noted probable neurogenic pain, slight conus or cauda injury, but follow-up was again recommended. In regard to the neurogenic bladder, although part of the July 2009 assessment, there was a remarkable lack of findings to support the assessment and such is true for all of the post-service evidence. The objective evidence of record indicates that the appellant does not have a disability that is due to underlying disease or injury. We acknowledge the appellant's complaints but the findings of the VA examiner are clearly more probative than his reported observations, with respect to whether he actually has an underlying disability to account for the symptoms. Here, the VA examiner reviewed the record and determined that there was no neurological findings of the legs and/or neurogenic bladder. In sum, the preponderance of the evidence is against the claims. Because there is no approximate balance of positive and negative evidence, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102 (2010). RATINGS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. We conclude that the disability has not significantly changed and that a uniform rating is warranted. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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. The appellant's lumbar disc disease disability is evaluated under Diagnostic Code 5243 evaluating intervertebral disc syndrome. Under this rating criteria, the evaluation of intervertebral disc syndrome (preoperatively or postoperatively) is to be made either on the total duration of incapacitating episodes over the past 12 months. When rating based on incapacitating episodes, if there are incapacitating episodes having a total duration of at least one week but less than two week during the past 12 months, a minimum 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. 38 C.F.R. § 4.71a (2010). Note 1 to 38 C.F.R. § 4.71a, DC 5243 provides that an incapacitating episode is 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." Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 to DC 5243 provides that when rating on the basis of chronic manifestations, the orthopedic disabilities will be rated under the most appropriate orthopedic diagnostic code or codes and the evaluation of neurologic disabilities will be done separately using the most appropriate neurologic diagnostic code or codes. Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Lumbar Disc Disease The appellant has appealed the assignment of a noncompensable rating for lumbar disc disease. To warrant a higher evaluation the evidence must show incapacitating episodes having a total duration of at least one week but less than two week during the past 12 months. A compensable rating requires periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. A higher rating may also be warranted upon a showing of the functional equivalent of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Consideration is also given to additional limitation on repetition related to pain, fatigue, incoordination, weakness or lack of endurance. DeLuca, supra, 8 Vet. App. 202. Service treatment records reveal that in January 2002 the appellant fell in a fox hole and hit his back during basic training. The appellant reported numbness or tingling in May 2006. In June 2006, MRI of the lumbosacral spine was without contrast. Intervertebral disc desiccation was seen at L5-S1 but there was no loss of disc height. Mild desiccation of the intervertebral disc at L4-L5 but without any significant focal disc protrusions, and no signs of nerve root or thecal sac impingement at any of the levels was impressed. Also that month, the appellant reported pain in the lower back and shooting pain that radiates to the right leg. It was noted that he also had neurogenic bladder. Evaluation in July 2006 revealed a notation of neurological right leg with an impaired gait. In August 2006, minimal, if any, neurologic injury to motor function but may have a mild amount of bowel/bladder impairment was noted. The appellant reported continued back pains in August 2006. Examination revealed an old surgery scar on the back. There was no clubbing, cyanosis and/or edema of the extremities. Sensation to pinprick and light touch of the right lower extremity was decreased. It was noted in December 2008 that the appellant ambulated with a slight antalgic gait favoring the right side with external rotation at the hip during swing phase. In July 2009, neurological examination revealed 4+/5 strength for the right leg throughout and 5/5 for the left leg. Chronic low back pain and probable slight neurogenic pain/slight conus or cauda injury, and neurogenic bowel/bladder were assessed. In the February 2010 VA compensation and pension opinion, it was noted that the appellant developed persistent low back pain without radiculopathy after a fall in basic training in 2001. After the second fall, he experienced sudden low back pain and urinary incontinence. He had some moderately severe lower back pain that did not radiate to the legs. Examination by MRI showed no evidence of changes in the spinal cord, only degenerative lumbar disc disease. Degenerative lumbar intervertebral disc disease with low back pain with no radiculopathy was diagnosed. It was noted that in September 2010 the appellant worked in sedentary job for a friend two evenings a week. Based on the evidence of record, the Board finds against the claim for a compensable rating for lumbar disc disease. In this regard, the Board notes that the appellant has reported that his disability is more severe than evaluated. However, there is no evidence of incapacitating episodes yet alone incapacitating episodes having a total duration of at least one week but less than two week during the past 12 months. Neither the lay or medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the appellant that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. Furthermore, the evidence is devoid of a showing of the functional equivalent of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. In this regard we note, the record is devoid of any range of motion testing. The appellant was scheduled for several VA compensation and pension examinations but failed to report to the examinations. A failure to report does not allow the BVA to explore the functional impairment, if any, associated with the lumbar disc disease. We note that the duty to assist is not an one way street or a blind alley. The Board acknowledges the appellant's report of back pain and find that he is competent to report back pain. We have considered the pleadings and reports. However, his assertions are not credible and his decision to not report for a VA examination prevents VA from either confirming or refuting his lay evidence with a more current VA examination. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. As such, we find that the more credible and probative evidence is against a showing of periarticular pathology productive of painful motion, to at least warrant the minimum compensable rating. See 38 C.F.R. § 4.59. The Board has reviewed the record to determine whether any other diagnostic code may be applicable to the appellant's disability. However, the Board has found no DC that would allow for a higher rating. The Board also finds no basis for assignment of separate ratings for neurologic manifestations of the appellant's lumbar disc disease. In this regard, the February 2010 examiner found that there was no evidence of any residual of filum terminale injury or of neurogenic bladder. As such, a separate compensable rating is not warranted in this regard. We also note that examination has revealed an old surgery scar on the back. However, again, noting the appellant's decision to not report for his VA examinations the nature and extent of the scar is not of record and, therefore, there is no basis to determine if a separate compensable rating for scars is warranted. Furthermore, the evidence shows potential neurologic findings. Indeed, the appellant has reported leg tingling, numbness and weakness. We are mindful that neurological right leg weaker with impaired gait was noted in July 2006 and the July 2009 neurological examination revealed 4+/5 strength for the right leg throughout and 5/5 for the left leg. However, no evidence objectively demonstrates neurologic manifestations of the lumbar disc disease spine that warrants a separate compensable rating. In fact, the February 2009 VA examiner diagnosed degenerative lumbar intervertebral disc disease with low back pain with no radiculopathy. As such, there is no basis for assignment of a separate rating for neurologic symptoms. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Accordingly, a compensable rating for lumbar disc disease is not warranted. We have also considered referral for an extraschedular rating. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates 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 the veteran's 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 the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the record reflects that the appellant has not required frequent periods of hospitalization for his disability and that the manifestations of the disability is contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. Multiple Non-Compensable Service Connected Disabilities The appellant has appealed the denial of a 10 percent evaluation based on multiple noncompensable service-connected disabilities. Whenever a veteran is suffering from two or more separate permanent service- connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324 (2010). Evidence of record shows that the appellant is service-connected for a low back disability and hypertension. Each disability is currently evaluated as noncompensable. The Board acknowledges the nature of the appellant's disabilities. However, the evidence of record does not reflect that these disabilities clearly interfere with normal employability. We again note that the appellant was scheduled for several VA compensation and pension examinations but failed to report to the examinations. Such examinations would have been helpful in determining the nature and extent of his disabilities and the impact they have on his ability to maintain employment. However, based on the record presented there is simply no evidence that the appellant's service- connected disabilities, either individually or in combination, have "clearly" interfered with his normal employability, or have had any measurable negative effect on his employability during the appeal period. In fact, it was noted in September 2010 that the appellant worked in sedentary job for a friend two evenings a week. In view of the foregoing, the Board finds that the criteria for the assignment of a 10 percent evaluation under the provisions of 38 C.F.R. § 3.324 have not been met. ORDER Service connection for a left leg disability is denied. Service connection for a right leg disability is denied. Service connection for a bladder disability is denied. A compensable rating for lumbar disc disease is denied. A 10 percent evaluation based on multiple noncompensable service-connected disabilities is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs