Citation Nr: 1208006	
Decision Date: 03/02/12    Archive Date: 03/16/12

DOCKET NO.  09-03 716	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for service-connected chronic low back syndrome due to degenerative disc disease of the spine.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Durham, Associate Counsel
INTRODUCTION

The Veteran served on active duty from February 1990 to January 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 RO decision, which assigned an evaluation of 20 percent for service-connected chronic low back syndrome due to degenerative disc disease of the spine, effective February 2, 2007.

In December 2011, a videoconference hearing was held before the undersigned Veterans Law Judge at the Philadelphia, Pennsylvania, RO.  A transcript of that proceeding has been associated with the claims folder.

Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher evaluation includes a claim for entitlement to a total disability rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working.  In this case, however, while the Veteran has reported that his low back disability affects his employment significantly, he is currently employed and has not asserted that he is completely unemployable due to this service-connected disability.  As such, the Board finds that the issue of entitlement to TDIU has not been raised by the record and need not be adjudicated by the Board in this decision.


FINDING OF FACT

The Veteran's service-connected chronic low back syndrome due to degenerative disc disease of the spine is manifested by limitation of motion, and complaints of fatigue, decreased motion, stiffness, spasm, and pain.




CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for service-connected chronic low back syndrome due to degenerative disc disease of the spine have not been met.  See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim has been eliminated by the Secretary.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in March 2007, June 2008, and June 2011 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Additionally, these letters described how disability ratings and effective dates were assigned.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and available, relevant VA and private medical records are in the file.  The Board notes that the Veteran was specifically directed in March 2007, June 2008, and June 2011 VCAA letters to submit any evidence in his possession relating to his claim or sufficient information regarding evidence that he would like VA to obtain.  The Veteran was given an additional 30 days following the December 2011 hearing to submit any additional private medical evidence, employment records, or evidence relating to disability benefits.  The Veteran did not submit additional evidence.  However, the Board notes that the claims file already contains private medical evidence reflecting that the Veteran was placed on Family/Medical Leave of Absence at one point and was placed on Long Term Disability at another point.  As the Veteran has submitted no further records, nor has he identified any records that he wishes for VA to obtain, the Board finds that all available records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claim.  VA has fulfilled its duty to assist.

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011).

With regard to the Veteran's claim for an increased rating for his service-connected chronic low back syndrome due to degenerative disc disease of the spine, the Veteran was provided an examination which addressed this claim most recently in June 2011.  There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined.  See 38 C.F.R. § 3.327(a) (2011).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  See VAOPGCPREC 11-95.  The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions.  The Board finds this examination report to be thorough and consistent with contemporaneous medical records.  Therefore, the examination in this case is adequate upon which to base a decision with regard to this claim. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).	

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2011).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2011).

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2011).  But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v.  Brown, 7 Vet. App. 55 (1994).  However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2011).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).  

The Board notes that the Veteran submitted a claim for entitlement to an evaluation in excess of 10 percent for his service-connected low back syndrome due to degenerative disc disease of the spine on February 2, 2007.  In a July 2007 rating decision, the RO assigned an evaluation of 20 percent to this service-connected disability under Diagnostic Code 5243, effective February 2, 2007.  The Veteran is seeking a higher rating. 
The schedule for rating spine disabilities was changed, effective September 26, 2003, to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243).  Diagnostic codes for all diseases and injuries to the spine were renumbered.  As the Veteran's claim was received in 2007, only the current rating formula must be considered and any regulation changes made prior to the September 26, 2003, changes are irrelevant for the purposes of this claim. 

Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is for application with 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 warranted 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 combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 evaluation is assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, 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.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2011).
For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2011).  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.  Id.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id.  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.  Id.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2011).

For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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.  Id. at Note (1).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  Id. at Note (2).

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.

The Board notes that the Veteran underwent a VA examination most recently in June 2011.  The examiner reviewed the claims file.  The examiner noted that there is no history of hospitalization or surgery.  There is no history of urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, nocturia, fecal incontinence, obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, or unsteadiness.  The Veteran reported a history of fatigue, decreased motion, stiffness, spasm, and pain.  The Veteran did not report weakness.  The Veteran reported radiating pain or numbness in the left leg to the posterior thigh and the right leg to the anterior thigh.  The examiner noted that there are no incapacitating episodes of spine disease.  The Veteran reported that he is unable to walk more than a few yards.  The Veteran's posture and head position were normal, and there was symmetry in appearance.  The Veteran was noted as having a waddling gait.  The Veteran did not have gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis.  Upon examination of the thoracolumbar sacrospinalis, the Veteran was noted as having spasms bilaterally.  He was noted as not having atrophy, guarding, pain with motion, tenderness, or weakness on either side.  The examiner noted that the muscle spasm is not severe enough to be responsible for abnormal gait or abnormal spinal contour.  Upon examination, the Veteran's flexion was recorded as 0 to 38 degrees, his extension as 0 to 12 degrees, his left lateral flexion as 0 to 22 degrees, his left lateral rotation as 0 to 60 degrees, his right lateral flexion as 0 to 28 degrees, and his right lateral rotation as 0 to 26 degrees.  The examiner noted that there is objective evidence of pain on active range of motion and following repetitive use.  There are no additional limitations after 3 repetitions of range of motion.  The Veteran was noted as having good sensation of both feet.  Detailed reflex examination revealed a normal abdominal reflex on the left side.  No results were recorded for abdominal reflex on the right side.  Knee jerk testing was noted as being hypoactive on the left side and normal on the right side.  Ankle jerk testing was noted as being hypoactive on the left side and normal on the right side.  Plantar flexion was normal bilaterally.  Upon detailed motor examination, the Veteran was noted as having active movement against full resistance with regard to hip flexion, hip extension, knee flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension.  Muscle tone was normal, and there was no muscle atrophy.  The examiner noted that the Veteran is currently employed as a full-time field service engineer.  He has lost 1 week from work during the past 12-month period.  Although, the Veteran is working from home now.  

The Veteran also underwent a VA examination in April 2007.  At this examination, the Veteran reported that his pain is moderate to severe.  It is present all of the time but varies.  It is increased with lifting, standing, sitting for any length of time, walking, and driving.  The pain is located in the lower left back and radiates down through primarily the left lower extremity posteriorly to the midcalf.  The Veteran also reports that he gets tingling in his anterior thighs.  He occasionally has pain on the right but primarily on the left side.  The Veteran reported that 2 or 3 times in a 6-month period he developed significantly more pain and is really not able to get out of bed.  This lasts for 3 to 5 days.  Associated symptoms include tingling along with numbness.  The Veteran does not use a cane, crutches, or a walker.  He does have a brace and uses it occasionally but not principally for walking.  The Veteran reports that he normally will want to sit down after walking 11 minutes.  The Veteran has not fallen because of his back.  The Veteran has not had any surgery.  However, he reports epidural steroids, a set of 3 done twice, and a radiofrequency lumbar rhizotomy.  The Veteran reported that had worked as a field service engineer for medical diagnostic machines.  He was not able to continue this because of his back.  He reports he was on disability for 9 months, and for the past 3 weeks, he has been working with evidently the same company at home as a medical consultant for medical diagnostic machines.  The Veteran was noted as having a normal gait, including heel and toe, and normal lumbar lordosis and normal thoracic kyphosis.  There is no spasm on range of motion.  There is no point tenderness, though the Veteran localizes the center of his pain to the left SI joint area.  Upon examination, the Veteran's flexion was recorded as 0 to 56 degrees, 0 to 62 degrees, and 0 to 52 degrees.  The Veteran does hold on at the peak of forward flexion.  Extension is 0 to 35 degrees, 0 to 29 degrees, and 0 to 35 degrees.  Left lateral flexion is 0 to 30 degrees, 0 to 30+ degrees, and 0 to 30+ degrees.  Right lateral flexion is 0 to 30+ degrees, 0 to 30+ degrees, and 0 to 30+ degrees.  Right lateral rotation is 0 to 30+ degrees, 0 to 30+ degrees, and 0 to 30+ degrees.  Left lateral rotation is 0 to 30+ degrees, 0 to 30+ degrees, and 0 to 30+ degrees.  Straight-leg raise is mildly positive on the left at 90 degrees.  Knee jerks are 1+ and 1+,and ankle jerks are 1+ and 1+.  There is no decreased sensation to sharp.  The Veteran was diagnosed with low back strain; spinal disk condition with, by MRI, herniated disk (small central) at two levels; and foraminal stenosis.  Motion was repeated times three in each direction without significant change.  There is therefore no evidence of decreased range of motion or function with repetition.  Flare-ups do occur, as recorded by the Veteran's history.  His function and range of motion are more limited during that time.  This cannot be otherwise quantified.   

The Board also reviewed relevant VA and private treatment records.  In a February 2007 private medical record from Neurology Associates of Monroe County, P.C., the Veteran reported low back pain and indicated that the pain will intermittently radiate down the anterior and posterior left thigh to the knee.  The physician noted that tone and bulk were normal in all four extremities.  Strength was 5 out of 5 proximally and distally in all four extremities.  Reflexes were 1+/4 and symmetric in the bilateral upper and lower extremities.  Toes were downgoing bilaterally.  The Veteran ambulated with a mildly antalgic gait pattern favoring the right.  He had difficulty with tandem walk.  The Veteran had a positive straight leg raise on the left side at 45 degrees with pain radiating to the back.

In a March 2007 private medical record from Neurology Associates of Monroe County, P.C., the Veteran reported lower back pain and flare-ups, wherein he had difficulty ambulating secondary to the severe spasm that he had.  It was noted that there is some numbness and tingling association in his bilateral legs, left more than the right.  The Veteran's gait was unremarkable.  Motor examination strength in the lower extremities is a 5 out 5 proximally and distally.  Reflexes are symmetrical.  The Veteran was diagnosed with lumbar radiculopathy with L5-S1 small disk herniation and an L4-L5 disk bulge.  This physician advised the Veteran to have an EMG and nerve condition study of the bilateral lower extremities to evaluate for any active radiculopathy.  The Veteran indicated that he was not keen to do so, since he has had epidural injections and facet blocks in the past.  

In a September 2008 VA treatment record, the Veteran reported a history of back pain, mostly in the right low buttock into the thigh.  He denied weakness or numbness in the legs, other than rare left thigh numbness.  

The Board notes that the Veteran indicated in a June 2011 statement that, whenever he sees a doctor, he gets medications and bedrest.  The Veteran further indicated that he has changed jobs twice due to low back issues and feels that his income is limited due to his back.  The Veteran indicated that he was on disability for 9 months and ended up getting a position where he could work at home due to his back.  At the December 2011 hearing, the Veteran indicated that, for some reason, whenever he has had his VA medical appointments, it has been a good day.  He further indicated that, about once or twice per week, he stays in bed for extra hours until he feels like he can get up and move around.  About once a month, he indicated that he has episodes that last a day or two where he just cannot do anything and he has to have someone drive him to the doctor's office.  

The evidence of record reflects that the Veteran was approved for Family/Medical Leave of Absence (FMLA) beginning on January 23, 2007, through March 8, 2007.  The Veteran's disability was closed, as the Veteran returned to work on March 9, 2007.  In a February 2007 Certification of Healthcare Provider form, the Veteran was noted as having low back pain radiating into the left leg.  

The evidence of record also reflects that the Veteran received disability benefits from February 2005 to August 2005 for his back.  However, as the Veteran filed his claim for an increased rating in February 2007, this period of time is not on appeal. 

With regard to assigning an increased rating under the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that there is no evidence of record showing that the Veteran has favorable or unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, or that he has forward flexion of the thoracolumbar spine limited to 30 degrees or less.  Therefore, an increased rating cannot be assigned under the General Rating Formula for Disease and Injuries of the Spine.  

The Board acknowledges that the April 2007 VA examiner noted that the Veteran's function and range of motion are more limited during times of flare-up.  However, it was also noted that this cannot be otherwise quantified.  Further, it was noted that motion was repeated times three in each direction without significant change, and there is no objective evidence of decreased range of motion or function with repetition.  Therefore, with no evidence of record specifically reflecting that the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less, an increased rating is not warranted based on limitation of range of motion. 

With regard to applying the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board finds no objective medical evidence in the record reflecting that the Veteran has been prescribed bedrest by a physician for his service-connected lumbar spine disability for any period of time on appeal.  The Board notes that the Veteran indicated in a June 2011 statement that, whenever he sees a doctor, he "gets meds and bedrest."  However, the Board believes that the Veteran's vague description is not consistent with the type of incapacitating episode contemplated by the rating criteria, which describe each individual attack as one so severe it requires bed rest actually prescribed by a doctor in response.  The Board believes that this interpretation is consistent with the fact that, at the December 2011 hearing, the Veteran merely asserted that, about once or twice per week, he stays in bed for extra hours until he feels like he can get up and move around, and about once a month, he has episodes that last a day or two where he just cannot do anything and he has to have someone drive him to the doctor's office.  The Board also believes that this interpretation of his June 2011 statement is consistent with the fact that the June 2011 VA examiner specifically noted that there are no incapacitating episodes of spine disease.  As such, an increased rating cannot be assigned under this criteria.

The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code.  

The Board acknowledges that the Veteran was noted as having low back pain radiating into the left leg in a February 2007 Certification of Healthcare Provider form.  The Veteran was diagnosed with lumbar radiculopathy with L5-S1 small disk herniation and an L4-L5 disk bulge in a March 2007 private medical record from Neurology Associates of Monroe County, P.C.  However, the Board also notes that this physician advised the Veteran to have an EMG and nerve condition study of the bilateral lower extremities to evaluate for any active radiculopathy.  The Veteran declined to do so.  In a September 2008 VA treatment record, the Veteran denied weakness or numbness in the legs, other than rare left thigh numbness.  At the June 2011 VA examination, the Veteran was noted as having good sensation of both feet.  Detailed reflex examination revealed a normal abdominal reflex on the left side.  No results were recorded for abdominal reflex on the right side.  Knee jerk testing was noted as being hypoactive on the left side and normal on the right side.  Ankle jerk testing was noted as being hypoactive on the left side and normal on the right side.  Plantar flexion was normal bilaterally.  Upon detailed motor examination, the Veteran was noted as having active movement against full resistance with regard to hip flexion, hip extension, knee flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension.  Muscle tone was normal, and there was no muscle atrophy.  

Upon review of all relevant medical evidence of record, the Board notes that the Veteran has complained of radiating pain throughout the course of this appeal and has been noted as having lumbar radiculopathy.  However, the Board finds no clinical evidence reflecting that the Veteran has radiculopathy to a degree that would be considered to be more than slight in nature, if any at all, so as to warrant a separate compensable rating under Diagnostic Code 8520.  As noted above, the Veteran did not wish to have an EMG and nerve condition study of the bilateral lower extremities to evaluate for any active radiculopathy when he was diagnosed with lumbar radiculopathy in the March 2007 private medical record.  The Veteran denied weakness or numbness in the legs, other than rare left thigh numbness in the September 2008 VA medical record.  At the June 2011 VA examination, the Veteran was noted upon detailed motor examination as having active movement against full resistance with regard to hip flexion, hip extension, knee flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension.  Muscle tone was normal, and there was no muscle atrophy.  Without clinical evidence of radiculopathy of either leg that is at least mild in nature, the Board concludes that a separate rating is not warranted for either lower extremity under Note (1).

With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board notes that the Veteran reported a history of fatigue, decreased motion, stiffness, spasm, and pain at the June 2011 VA examination.  Additionally, the examiner noted that there was objective evidence of pain on active range of motion and following repetitive use.  However, it was further noted there were no additional limitations after 3 repetitions of range of motion.  At the April 2007 VA examination, motion was repeated times three in each direction without significant change.  It was noted that there was no evidence of decreased range of motion or function with repetition.  Therefore, as there is no objective evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca.   

The Board notes that, at the December 2011 hearing, the Veteran indicated that, for some reason, whenever he has had his VA medical appointments, it has been a good day.  The Board has considered this assertion and notes that his symptoms may vary in severity at different times.  However, the Board finds no objective evidence to suggest that the VA examinations of record do not adequately reflect the severity of his service-connected disability.  As such, the Board finds it appropriate to rely on the medical evidence of record in adjudicating this claim.     

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected chronic low back syndrome due to degenerative disc disease of the spine is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

The Board concludes that the preponderance of the evidence is against assigning a rating in excess of 20 percent for the Veteran's service-connected chronic low back syndrome due to degenerative disc disease of the spine.  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  Hart, supra.






ORDER

Entitlement to an evaluation in excess of 20 percent for service-connected chronic low back syndrome due to degenerative disc disease of the spine is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs