Citation Nr: 1216629 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 09-07 054A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable rating for residuals of a left elbow sprain. 2. Entitlement to an initial rating higher than 10 percent for spondylolisthesis with herniated nucleus pulposus, spinal stenosis, and degenerative changes of the lumbar spine (low back disability). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to March 2008. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support for his claims for higher initial ratings for these disabilities at issue, the Veteran testified at a videoconference hearing in October 2011 before the undersigned Veterans Law Judge of the Board. Right after hearing, the Veteran faxed additional evidence to the Board, including written statements from his wife and employer, as well as a September 2011 radiology report of his lumbar spine. He waived his right to have the RO initially consider this additional evidence. 38 C.F.R. §§ 20.800, 20.1304 (2011). FINDINGS OF FACT 1. The Veteran's left elbow disability was negative on X-ray; he had 0 degrees of extension, 150 degrees of flexion and 80 degrees of pronation and supination. The May 2011 VA compensation examiner indicated the Veteran's left elbow was not additionally limited by pain, fatigue and weakness following repetitive motion testing. 2. His low back disability was manifested by normal flexion, a combined range of motion of 240 degrees without ankylosis, and pain; and there are no incapacitating episodes necessitating bed rest prescribed by a physician or any secondary neurological manifestations (e.g., sciatica/radiculopathy), including affecting his lower extremities, warranting a separate compensable rating. CONCLUSIONS OF LAW 1. The criteria are not met for an initial compensable rating for the residuals of the left elbow strain. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5024, 5256, 5257, 5260, 5261 (2011). 2. The criteria also are not met for an initial rating higher than 10 percent for the the low back disability. 38 U.S.C.A §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, DCs 5003, 5010, 5237, 5242, 5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Before addressing the underlying merits of the claims, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim has been satisfied under the VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this case, a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in February 2008. This letter informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by discussing the downstream disability rating and effective date elements of the claims. Also keep in mind that these claims at the time were for service connection, and the RO since has granted these underlying claims in the May 2008 decision at issue. His appeal concerns his disagreement with the initial disability rating assigned for his left elbow and low back disabilities. But when, as here, the underlying claims for service connection has been granted, there is no requirement to provide additional VCAA notice concerning a "downstream" element of the claim, so including regarding this disability rating element, because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Rather, once a notice of disagreement (NOD) has been filed, for example contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and statement of the case (SOC) control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007); and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). And he was provided this required SOC in February 2009 citing the applicable statutes and regulations and discussing the reasons and bases for not assigning higher initial ratings for his disabilities. Indeed, he also since has been provided supplemental SOCs (SSOCs) concerning the claims in February, May, and August 2011. Importantly, there is no allegation or evidence of any content or timing error in the provision of the VCAA notice he received or in that SOC or those SSOCs he since has received concerning his claims for higher initial ratings for his disabilities. And as the pleading party, he, not VA, has this evidentiary burden of proof of showing there is a VCAA notice defect in timing or content and, more importantly, that this defect is unduly prejudicial, meaning outcome determinative of his claims. See Sanders v. Shinseki, 129 S. Ct. 1696. So absent this pleading or showing, the duty to notify has been satisfied. And as for the duty to assist, the RO obtained his service treatment records (STRs), as well as private and VA evaluation and treatment records - including the reports of his VA compensation examinations. The reports of these examinations, and the other evidence on file, contain the findings needed to properly adjudicate his claims, including insofar as assessing the severity of his disabilities at issue and their impact on his occupation and daily activities. So additional examination and opinion concerning this and the other issues required to decide his claims are not needed. 38 C.F.R. §§ 3.327, 4.2. See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Thus, as there is no indication or allegation that other relevant evidence needs to be obtained, the Board finds that the duty to assist also has been met. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. II. General Statutes, Regulations and Precedent Cases Governing Claims for Increased Ratings In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If there have been changes in the severity of the disability, the Board will need to "stage" the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. DC 5010 provides that arthritis due to trauma, i.e., post-traumatic arthritis, is to be evaluated as degenerative arthritis. Degenerative arthritis (hypertrophic or osteoarthritis) is evaluated under DC 5003. And DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. According to DC 5003, when limitation of motion would be noncompensable, i.e., 0 percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent rating for each major joint so affected, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, VA assigns a 10 percent rating with X-ray evidence involving 2 or more major joints or 2 or more minor groups. VA assigns a 20 percent rating with X-ray evidence involving 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. VA's Rating Schedule does not define such descriptive words as "slight," "moderate" and "severe." Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, including with repeated use or during flare-ups, assuming these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 CF.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. As explained in further detail below, the Veteran's description and account of the severity of his disabilities is not substantiated by the medical evidence in the file. He testified during his recent October 2011 videoconference hearing that he experiences lumbar spine pain four times daily. Further, this has resulted in an abnormal gait. He also had difficulty with prolonged standing, walking, and climbing stairs. He is also under monthly chiropractic care. He also referred to his left elbow. He indicated that it is significantly weaker since his initial injury. It is also easily sprained, which he said happens a couple of times a year. He also noted the pain is about a 7 on a scale of 1-10. And at the conclusion of his hearing, he submitted supporting statements from his employer and wife, who also attested to his impairments as far as they affect his daily activities and employment. And while it is not absolutely required that he have medical evidence supporting his claims, the fact that he does not is significant, albeit not the only or sole factor, in determining whether higher ratings are warranted, especially since the applicable DCs require characterization and description of his disabilities, including in terms of whether they are severe enough to cause significant functional loss based on the objective physical limitations as well as diagnostic testing, which are not readily amenable to mere lay determination. See Vazque-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010) (noting that 38 U.S.C.A. § 5103(a) requires VA, for increased-rating claims, to notify the claimant that to substantiate such a claim he or she should provide or ask VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his or her employment (emphasis added)); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that "as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability"). III. Entitlement to an Initial Compensable Rating for Left Elbow Disability The Veteran claims that his left elbow disorder warrants a higher rating. For the reasons and bases discussed below, however, the Board finds that the record does not support a rating higher than 0 percent (i.e., a compensable rating) for his left elbow disability since the effective date of service connection. VA rated the Veteran's left elbow disorder under DC 5208. A 20 percent disability rating is available for either the major or minor forearm where flexion is limited to 100 degrees and extension is limited to 45 degrees. Under DC 5206, limitation of flexion of either the major or minor forearm to 100 degrees warrants a 10 percent rating; limitation of flexion of either forearm to 90 degrees warrants a 20 percent rating; limitation of flexion of the major forearm to 70 degrees warrants a 30 percent rating; limitation of flexion of the major forearm to 55 degrees warrants a 40 percent rating; and limitation of flexion of the major forearm to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5206. Under DC 5207, limitation of extension of either the major or minor forearm to 45 or 60 degrees warrants a 10 percent rating; limitation of extension of either forearm to 75 degrees warrants a 20 percent rating; limitation of extension of the major forearm to 90 degrees warrants a 30 percent rating; limitation of extension of the major forearm to 100 degrees warrants a 40 percent rating; and limitation of extension of the major forearm to 110 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5207. Also, under Diagnostic Code 5213, a 10 percent rating requires impairment of supination to 30 degrees or less for either the major or minor forearm and a 20 percent rating for limitation of pronation, when pronation is lost beyond the middle or last quarter of the arc in either major or minor forearm. The normal range of motion of the elbow is flexion to 145 degrees and extension to 0 degrees. Normal pronation is from zero to 80 degrees and normal supination is from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran's left arm is documented to be his "minor" arm and his right arm is his "major" (dominant) arm for the purposes of applying these rating criteria. VA furnished a compensation examination in March 2008 to determine the nature and severity of his left elbow disorder. The examiner reviewed the Veteran's pertinent medical and other history. At the examination, the Veteran reported complaints of intermittent pain that ranged from moderate to severe. This occurred approximately three times a year. The pain was exacerbated by pushing, pulling and lifting. As far as occupational impairment, at that time, he was employed as a car dealer. He indicated that the left elbow disability interfered with his occupational duties when he had to lift more than 20 pounds. Objective findings indicated no swelling, redness, tenderness or deformities. On the range of motion testing, he exhibited 0 degrees of extension; 145 degrees of flexion; 0-80 degrees of forearm pronation and 0-75 degrees of supination. An X-ray of the left elbow was considered normal. This examiner diagnosed mild left elbow sprain. With respect to the DeLuca criteria, the Veteran denied any flare ups. The examiner noted the Veteran was not additionally limited by pain, fatigue, weakness or lack of endurance on repetitive use. The record contains an April 2009 private magnetic resonance imaging (MRI) report of the left elbow reflecting probable lateral epicondylitis. VA afforded another compensation examination in May 2011 to determine the severity of the Veteran's left elbow disorder. The examiner reviewed the Veteran's pertinent medical and other history. During the examination, the Veteran denied that he experienced any left elbow pain on non-use. Nor did he experience weakness, stiffness, or fatigability in the left elbow. As far as occupational impairment, he indicated that he was then currently employed as a pizza delivery driver. He acknowledged that this disability had no effect. Objective findings indicated no swelling, tenderness, or crepitation. Range of motion testing was considered normal. He exhibited 0 degrees of extension and 150 degrees of flexion on the left. Supination and pronation were both 0-80 degrees. X-ray revealed no arthritis. This examiner diagnosed mild, chronic, intermittent left elbow strain. With respect to the DeLuca criteria, there was no pain on the motion study. However, the veteran reported that lifting 50 pounds or more, led to flare-ups. He experiences flare-ups approximately 2 times a year and they lasted for an hour. During flare-ups, the pain was 7 on a scale of 1-10. The pain is relieved by Motrin or applying ice to the left elbow joint. The examiner noted that on repetitive use, the Veteran was not additionally limited by pain, fatigue weakness and lack of endurance. Under DC 5003, a 10 percent rating requires degenerative arthritis of the specific joint. However, an X-ray indicated that there was no evidence of arthritis in his left elbow so a compensable rating under this diagnostic code is not applicable. Under DC 5206, a 10 percent rating requires flexion limited to 100 degrees. The March 2004 VA examiner indicated that he had flexion of 150 degrees so a compensable rating is not for application. Under DC 5207, a 10 percent rating requires 45 degrees of extension. The VA examiners noted he had flexion of 0 degrees so a compensable rating is inapplicable here as well. Since he had noncompensable flexion and extension, a 20 percent rating is not applicable under DC 5208. In addition, the May 2011 examiner noted the Veteran had normal supination and pronation so a compensable rating under DC 5213 is not applicable either. With respect to the DeLuca criteria, the VA examiners indicated the Veteran was not additionally limited by pain, fatigue, or weakness on repetitive use. As such, assigning an additional 10 percent under DeLuca is not warranted. In sum, the Veteran's left elbow disability does not warrant a rating higher than 0 percent. Since the Veteran's left elbow disability has never been more than 0-percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. And as the preponderance of the evidence is against his claim for an initial compensable rating for this disability, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). IV. Entitlement to a Rating Higher than 10 percent for the Low Back Disability Including Determining Whether a Separate Rating is Warranted for Associated Neurological Manifestations The Veteran's service-connected low back disability has been evaluated under Diagnostic Code 5239, for spondylolisthesis or segmental instability. 38 C.F.R. § 4.71a, Diagnostic Code 5239. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5242, unless DC 5243 is utilized for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent evaluation is warranted 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, 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, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, 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. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, 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) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, 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) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. A VA examination was conducted in March 2008. The Veteran complained of mild to moderate intermittent low back pain that occurred 3-4 times a week. The pain lasted approximately 20 minutes. He denied any radiating pain to the lower extremities or the use of assistive devices. As far as impairment in daily activities and in his occupational pursuits, as noted above, at this time, the Veteran was employed as a car dealer. He had difficulty in standing or walking for more than 15 minutes. He also was unable to lift more than 50 pounds. Examination of the lumbar spine found no evidence of pain, muscle spasm, weakness, tenderness, or deformity. The range of motion of the lumbar spine was 0 to 90 degrees of flexion; 0 to 30 degrees extension; 0 to 30 degrees of lateral bending, bilaterally; and 0 to 30 degrees of rotation, bilaterally. On neurological examination, both motor and sensory functions were both normal. He denied any incapacitating episodes during the previous 12-months. The examiner noted that he walked with a mild abnormal gait. It was also noted that the Veteran's height was 5'10" and he weighed 275 pounds. With respect to the DeLuca criteria, the examiner found no limitation of motion due to repetitive movement; and estimated no loss of function due to flare ups. The record contains private chiropractic reports showing the Veteran received therapeutic treatment for his lumbar spine disability. A September 2008 imaging report noted degenerative joint disease (DJD), of the lumbar spine at the L4-5 level with mild disc thinning at the L4-5 and L5-S1 levels. Upon consideration of the private treatment records, and based on the diagnosis of degenerative joint disease (arthritis) in this lumbar spine, the RO granted a higher 10 percent rating for the Veteran's low back disorder retroactively effective from April 1, 2008, the effective date of the award of service connection. Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to a higher rating remained on appeal, as the Veteran has not indicated his desire to withdraw that issue. See AB v. Brown, 6 Vet. App. 35 (1993). Another VA examination was conducted in May 2011. The Veteran reported similar complaints. He reported that he is undergoing private monthly chiropractic care, but continues to experience persistent low back pain. He described the pain as constant and dull. He rated his pain as 2 on a scale of 1-10. He also indicated that pain radiated to his lower extremities. He has not sought physician treatment or had an injury to the back since service discharge. He experienced flare-ups with running more than 10 minutes, climbing more than 5-6 flights of stairs, lifting objects heavier than 50 pounds, and walking more than 15 minutes. On flare-ups the pain is 9 on a scale of 0-10. During flare-ups, he losses up to 70 percent of motion. The alleviating factors is resting or lying down for 20-30 minutes and applying heat. He also took Motrin. He also stated that he had flare-ups once every 2-3 months. On examination, there was mild paravertebral spasm. However, on rest, there was no tenderness or pain in the lower spine or weakness in the lower extremities. The active and passive range of motion of the lumbar spine was 0 to 90 degrees of flexion; 0 to 30 degrees extension; 0 to 45 degrees of lateral bending, bilaterally; and 0 to 45 degrees of rotation, bilaterally. There was mild pain on motion with lateral flexion from 30-45 degrees and extension from 20 to 30 degrees. There was no pain on forward flexion or rotation. On the neurological examination there was no muscle atrophy in the lower extremities. The muscle tone was normal in both extremities. The motor strength was 5/5 and normal in both extremities. There was no sensory deficit to light touch or pinprick in either lower extremity. The deep tendon reflexes were 1+ and symmetrical in both lower extremities. The Veteran denied any incapacitating episodes in the previous 12-months that required complete bed rest, moist heat, and medication prescribed by a physician for his lumbar spine disability. The diagnosis was mild chronic lumbar strain and Grade I spondylolisthesis with slight disk narrowing at L5-5 level. With respect to the DeLuca criteria, the examiner found no limitation of motion due to repetitive movement; and estimated no loss of function due to pain, fatigue, weakness, or lack of endurance. At his hearing the Veteran submitted a September 2011 report of a radiological study of the low back. The diagnostic impression was Grade 1 approaching Grade 2 anterolisthesis of L4-L5 without instability and bilateral pars defects. In finding that the Veteran's manifestations do not approximate a 20 percent rating, the Board also considered the statements of the Veteran, his spouse and current employer. The Veteran's employer in October 2011 reported that the Veteran was now employed as a pizza delivery driver. He stated that the low back disability did not affect his driving. However, there were certain accommodations afforded the Veteran. He indicated that the Veteran was unable to stand for prolonged periods and required a chair for certain in store duties. If not seated, he required frequent breaks. His physical limitations also inhibited his chance at a managerial position. The same month, the Veteran's spouse reported that the Veteran was limited in his routine daily activities. He had recurring back pain that lasted for hours. She stated that he is unable walk or stand more than a couple of minutes. He was also limited in his household tasks such as grocery shopping, mowing the lawn, repairing items, or performing general maintenance. He required the assistance of their sons. He is also unable to participate in scouting duties. The Board realizes that there is evidence of pain on extension and lateral movement as well as evidence of mild paravertebral muscle spasm; however, it must be pointed out that on objective testing, the Veteran has full range of motion, without ankylosis, pain on flexion or rotational movement; or incapacitating episodes necessitating bed-rest prescribed by a physician, or any secondary neurological manifestations warranting a separate compensable rating. Furthermore, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not show any additional limitation of motion or functional impairment that would support disability ratings in excess of those already assigned. See DeLuca, 8 Vet. App. 202; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. These findings are consistent with a 10 percent rating under the General Rating Formula. The Veteran's low back disability was manifested by normal flexion, a combined range of motion of 240 degrees without ankylosis. The Board points out that there is no evidence of lumbar spine forward flexion limited to less than 60 degrees, combined range of motion limited to less than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour- the criteria required for a higher, 20 percent rating. Under Diagnostic Code 5243, intervertebral disc syndrome (IVDS) or disc disease may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating IVDS based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 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 60 percent rating is warranted. Note (1) to the Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a. In this case, the medical evidence does not indicate any bed rest prescribed by a physician, let alone for a total period of time that would warrant higher evaluations. Furthermore, as noted under Note (1) of the General Rating Formula, VA must evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. At his most recent VA examination, the Veteran described having pain radiating down his lower extremities. However, the VA examiners specifically found no neurologic deficits. The Veteran also has not been found to have any bowel or bladder impairment associated with his spine disabilities. There was no muscle atrophy, sensory deficit, or other indications of neurological dysfunction found on examination. Hence, there is no evidence of any separately ratable neurological manifestations of service-connected lumbar spine disability. Since the Veteran's lumbar spine disability have never been more than 10-percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. And as the preponderance of the evidence is against his claim for an initial compensable rating for this disability, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). V. Consideration of an Extra-Schedular Evaluation under 38 C.F.R. § 3.321(b)(1) In exceptional cases where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the Board finds that the Veteran's symptomatology and limitation in occupational functioning for the disabilities on appeal are reasonably contemplated by the rating schedule under the first prong of the analysis. The Court has held that, in making this determination, "there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established rating criteria found in the rating schedule for that disability." Thun, 22 Vet. App. at 115. "[I]f 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." Id. See also VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996), para. 7 (when service-connected disability affects employment "in ways not contemplated by the rating schedule" § 3.321(b)(1) is applicable." Also, an inadequacy of the rating schedule cannot be established solely by showing an asserted gap between the Veteran's income and the income of similarly qualified workers in his field. Thun, 22 Vet. App. at 116. The Veteran's primary complaints regarding his orthopedic disabilities involve pain and limitation of motion, both of which are contemplated by the schedular rating criteria. Consequently, the Board finds that his symptomatology and limitation in occupational functioning for the disabilities on appeal are reasonably contemplated by the rating schedule under the first prong of the analysis. It therefore is unnecessary to reach the further, downstream, questions in the Thun analysis. But even assuming for the sake of argument that the second prong of Thun applies, there still is no probative (competent and credible) evidence that any of the disabilities on appeal has caused marked interference with his employment-meaning above and beyond that contemplated by their respective schedular ratings, or has required any inpatient treatment, much less on a frequent basis. Instead, his evaluation and treatment for these disabilities has exclusively, on an outpatient basis during the appeal period. So, in short, there is no indication in the record that the interference with his work caused by his service-connected disabilities, individually, could be considered above and beyond that contemplated by the schedular ratings assigned for these disabilities. See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). In conclusion, since the rating schedule adequately addresses the symptomatology for the disabilities at issue in this appeal, referral to the Director of Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1) is unwarranted. See Thun, supra. See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim for an initial compensable rating for the residuals of the left elbow sprain is denied. The claim for an initial rating higher than 10 percent for the low back disability also is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs