Citation Nr: 1300864 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 06-14 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a rating higher than 40 percent for lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from July 1972 until retiring in July 1992. This appeal to the Board of Veterans' Appeals (Board) is from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which, among other things, denied the Veteran's claim for a rating higher than 40 percent for his service-connected lumbosacral strain. In support of this claim, the Veteran testified at a hearing in April 2007 at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge. The Board subsequently, in July 2007, remanded this claim for a higher rating for the lumbosacral strain disability to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. Since, however, the RO/AMC did not comply with those remand directives, there was another remand of this claim in January 2009. But, regrettably, even after that second remand, there still had not been compliance with the remand directives, so the Board again remanded this claim for a third time in September 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to ensure compliance with the terms of its remand orders). There since has been this required compliance, however, so the Board is proceeding with the adjudication of this claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); FINDING OF FACT The Veteran does not have unfavorable ankylosis of his entire thoracolumbar spine on account of his service-connected lumbosacral strain, and it has been clarified that any intervertebral disc syndrome (IVDS) and radicular-type symptoms he experiences, including involving his left knee or lower extremity, are unrelated to this service-connected disability, so not associated with or part and parcel of it. CONCLUSION OF LAW The criteria are not met for a rating higher than 40 percent for the service-connected lumbosacral strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5292 (2002), DC 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To this end, upon receipt of a complete or substantially complete application, VA was required to inform him of any information and medical or lay evidence not of record: (1) that was necessary to substantiate this claim; (2) that VA would obtain and assist him in obtaining; and (3) that he was expected to provide. 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). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the RO sent the Veteran a March 2004 VCAA notice letter concerning his claim, so not until after having initially adjudicated his claim in the February 2004 rating decision at issue in this appeal, thus, not in the preferred sequence. The letter advised him to provide evidence showing his service-connected lumbosacral strain had worsened so as to, in turn, suggest his entitlement to a higher rating for this disability. In addition, a subsequent August 2006 VCAA notice letter advised him of the necessity of providing medical or lay evidence demonstrating the nature and symptoms of this lumbosacral strain disability, the severity and duration of its associated symptoms, and the impact of the condition and its attendant symptoms on his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice in a claim for an increased rating need not be "Veteran specific", such as by referring to alternative diagnostic codes or "daily life" evidence). As importantly, since providing this required notice, the claim has been readjudicated in September 2008 and February 2010 SSOCs. So those readjudications rectified ("cured") the timing defect in the provision of those notices. See Mayfield and Prickett, supra. The Veteran therefore has received all required VCAA notice concerning this claim. Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notices he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the pleading party attacking the agency's decision, he, not VA, has the evidentiary burden of proof of showing that there is a VCAA notice error in timing or content, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist him with this claim by obtaining all potentially relevant evidence, which is obtainable, and, therefore, appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO and AMC obtained his private medical records, VA outpatient treatment records, and Air Force Hospital outpatient treatment records. He also had several VA compensation examinations assessing and reassessing the severity of his lumbosacral strain disability. Only if the record is inadequate or if there is a suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a) (2012). Here, VA performed multiple VA compensation examinations for the service-connected lumbosacral strain disability during the course of the increased rating period under appeal, with the most recent examination being in October 2011. The mere passage of time since does not, in and of itself, necessitate another examination. Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (discussing this in the alternative context of a claim for service connection). The most recent VA examination is adequate as it provides the information needed to properly rate his disability in relation to the applicable rating criteria. 38 C.F.R. §§ 3.327(a), 4.2. The Board thus concludes that all the available records and medical evidence have been obtained in order to make a fair determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Veteran is not prejudiced as a result of the Board proceeding to the merits of this claim. II. Analysis The Board has reviewed all the evidence in the Veteran's physical claims file and the "Virtual VA" electronic folder. 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability ratings 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; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased-rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). If he does, then the rating must be "staged" to compensate him for this variance. The relevant temporal focus is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). If it was factually ascertainable that an increase in rating was warranted during that immediately preceding year, then the effective date of the higher rating may go back to the date when this increase was shown, even if preceding the actual claim. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). When evaluating musculoskeletal or joint disabilities that are at least partly rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, assuming these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 38 C.F.R. § 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). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1 (2011). If, however, a Veteran already has the maximum rating assignable based on limitation of motion, it is not necessary to consider these provisions. Johnston v. Brown, 10 Vet. App. 80 (1997). Moreover, the Court has clarified that, although pain may be a cause or manifestation of functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. For the entire rating period under appeal, the Veteran's lumbosacral strain disability has been rated as 40-percent disabling under either the former DC 5292 or present DC 5237. DC 5292 is the rating code for limitation of motion of the lumbar spine that was in effect prior to September 23, 2003. DC 5292 provides a 10 percent rating for low back disability manifested by slight limitation of motion, and a 20 percent rating for low back disability manifested by moderate limitation of motion. A maximum 40 percent evaluation requires severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2002). The old criteria for rating all other back disorders potentially provided other evaluations if a back disorder was manifested by a fracture with cord involvement requiring long leg braces or being bedridden (100 percent) or a fracture of the vertebra without cord involvement but leading to abnormal mobility requiring a neck brace (60 percent) (Diagnostic Code 5285); complete ankylosis of the spine at an unfavorable angle (100 percent) or complete ankylosis of the spine at a favorable angle (60 percent) (Diagnostic Code 5286); ankylosis of the lumbar spine at a favorable angle (40 percent) or ankylosis of the lumbar spine at an unfavorable angle (50 percent) (Diagnostic Code 5289); or severe lumbosacral strain defined as lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion (40 percent) (Diagnostic Code 5295). 38 C.F.R. § 4.71a (2002). DC 5237 is the revised code for lumbosacral strain, rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), effective September 26, 2003. The General Rating Formula encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Additionally, associated neurological abnormalities (e.g., bowel or bladder impairment) are now for evaluation separately. 38 C.F.R. § 4.71a, General Rating Formula. Under the General Rating Formula, a 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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 evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine (meaning when additionally considering the adjacent cervical segment). See id. Having carefully considered the Veteran's contentions in light of the evidence of record and applicable law, the Board finds that his lumbosacral strain disability is appropriately evaluated as 40-percent disabling throughout the increased-rating period on appeal. As the requirements for a rating higher than 40 percent are substantially similar under both versions of the rating schedule that were effective during the increased rating period under appeal, a common discussion regarding application of the evidence to the rating criteria is warranted. In essence, under the pre-amended regulations, a 50 percent rating required low back disorder symptomatology more nearly approximating unfavorable ankylosis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5289 (2002). Under amended regulations, a 50 percent rating required low back disorder symptomatology more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula (2012). As set out under the amended regulations, 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. Significant to this appeal, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See id., Note (1). During the pendency of this appeal, VA provided the Veteran several VA compensation examinations to determine the severity of his thoracolumbar spine disability. In a November 2003 VA medical examination report, a VA examiner noted that thoracolumbar spine range of motion was limited to 10 degrees of flexion, 10 degrees of extension, five degrees of bilateral lateral flexion, and five degrees of bilateral rotation. In an April 2004 VA medical examination report, a VA examiner noted that thoracolumbar spine range of motion was limited to less than five degrees of flexion, less than five degrees of extension, less than five degrees of bilateral lateral flexion, and less than five degrees of bilateral rotation. In a June 2006 VA medical examination report, a VA examiner noted that thoracolumbar spine range of motion was limited to five degrees of flexion, five degrees of extension, three degrees of bilateral lateral flexion, and three degrees of bilateral rotation. In November 2009 and October 2011 VA medical examination reports, the respective VA examiners noted that thoracolumbar spine range of motion was limited to five degrees of flexion, five degrees of extension, five degrees of bilateral lateral flexion, and five degrees of bilateral rotation. Regarding application of the pre-amended DC 5292 (limitation of motion) and DC 5295 (lumbosacral strain), the current 40 percent rating is the maximum contemplated under these diagnostic codes. As such, a higher rating would not be available under these criteria regardless of the extent of disability. Similarly, DC 5285 (fracture of the vertebra) and DC 5286 (complete bony fixation) are not applicable. 38 C.F.R. § 4.71a, DCs 5285, 5286, 5292, 5295 (2012). Therefore, the Board will not address them further. Under the pre-amended criteria, the next higher 50 percent rating requires low back disorder symptomatology more nearly approximating unfavorable ankylosis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5289 (2002). Under the current criteria, a 50 percent evaluation is not warranted unless the Veteran's lumbosacral sprain disability symptomatology more nearly approximates unfavorable ankylosis of the entire thoracolumbar spine (i.e., thoracic and lumbar segments in combination). 38 C.F.R. § 4.71a, DC 5237 (2012). Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. As already alluded to, Note (5) to DCs 5235-5242 explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar (thoracic and lumbar) spine, or the entire spine when considering all of these segments is fixed in flexion or extension. Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. The record of evidence, including the X-ray reports and the MRI report, obtained during the pendency of this appeal, does not contain a diagnosis of ankylosis of the spine. In the most recent October 2011 VA medical examination report, the VA examiner, having reviewed the entirety of the evidence, indicated the Veteran did not have ankylosis of the spine. Therefore, the evidence indicates his lumbosacral strain disability does not meet the criteria required for the next higher 50 percent rating under either the pre-amended criteria or the current General Rating Formula. 38 C.F.R. § 4.71a (2002, 2012). The Board also, as required, has considered whether the Veteran's lumbosacral strain disability is manifested by functional loss due to pain, weakness, premature or excess fatigability, incoordination, or other criteria not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 202. In a November 2009 VA medical examination report, a VA examiner indicated the Veteran's range of motion of the lumbosacral spine was limited due to pain, weakness, excess fatigability, but not incoordination. The November 2009 VA examiner further stated that the Veteran's lumbosacral strain disorder would be manifested by loss of all forms of motion of the lumbosacral spine during flare-ups. Be even in this extraordinary circumstance, this fixation of the lumbosacral spine at what amounts to zero degrees is more akin to the definition of favorable (versus unfavorable) ankylosis utilized in the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5), (2012). Moreover, the Veteran's currently assigned 40 percent rating already contemplates symptomatology more nearly approximating favorable ankylosis of his entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula (2012). In order to support a finding of unfavorable ankylosis of the entire lumbar or thoracolumbar spine, as required for the next higher 50 percent rating under the General Rating Formula, the evidence must indicate the Veteran's lumbosacral spine is fixed in flexion or extension. See 38 C.F.R. § 4.71a (2002, 2012). Moreover, under the General Rating Formula, the evidence must demonstrate that the anklyosis itself has resulted 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2012). Here, though, the Veteran has not been diagnosed with anklyosis despite multiple examinations of his thoracolumbar spine. Therefore, the evidence indicates his lumbosacral strain disability does not meet the criteria required for the next higher 50 percent rating under either the pre-amended criteria or the current General Rating Formula. 38 C.F.R. § 4.71a (2002, 2012). In a December 2009 VA lumbar spine MRI report, a VA examiner diagnosed the Veteran as having an arthritic condition of the thoracolumbar spine, specifically mild to moderate facet hypertrophy at L3-L4 and L4-L5. In an October 2011 VA medical examination report, a VA examiner opined that the facet hypertrophy disorder constituted a form of interverebral disc syndrome (IVDS). The Veteran has contended that his arthritic condition of the thoracolumbar spine is related to his currently service-connected lumbosacral strain disability. If the currently diagnosed IVDS disorder were found to be related to either his service or service-connected lumbosacral strain disability, or if there was not competent and credible evidence permitting the Board to distinguish what measure of symptoms is attributable to one versus the other, this reasonable doubt would have to be resolved in the Veteran's favor and, for all intents and purposes, the IVDS rated as part and parcel of his service-connected lumbar strain disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The significance of this is that, under the pre-amendment version of DC 5293 and current criteria found in DC 5243, this perhaps would allow for assignment of the next higher rating of 60 percent assuming this IVDS was manifested by incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months (so year). 38 C.F.R. § 4.71a, DC 5243 (2002, 2012). Moreover, in a November 2008 statement, the Veteran indicated his belief that he experienced radicular pain in his left knee related to his service-connected lumbosacral strain. In a March 2009 statement, he indicated that he experienced sciatica caused by his lumbosacral strain. He also indicated that he had been forced to take over two and a half weeks of sick leave from his job due to doctor's visits and physical therapy. Radiculopathy or sciatica involving the left lower extremity, if found to be a separate disability but if found to be due to the service-connected lumbosacral strain disability, could be rated via a separate rating under the criteria for paralysis of the sciatic nerve found at 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). But having reviewed the evidence of record, the Board finds that it does not indicate the Veteran has an arthritic condition tantamount to or indicative of IVDS, i.e., disc disease, or radiculopathy affecting his left knee or lower extremity because of his service-connected lumbosacral strain disability. This is not to say he does not have these other claimed conditions, just instead that they have not been associated with his service-connected low back disability (the lumbosacral strain). There equally is no competent and credible indication this service-connected lumbosacral strain disability, if not causing, alternatively is aggravating this arthritic condition or radiculopathy, either, so as to in turn warrant the granting of secondary service connection for this additional disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In a November 2003 VA lumbar spine X-ray report, a VA examiner found that the Veteran had a transitional L5 vertebra with resultant decreased lumbosacral disc space. The VA examiner noted no apparent degenerative joint disease at that level. The VA examiner indicated the transitional vertebra was probably "congenital" and that the Veteran had no other significant spine abnormalities. In a June 2006 VA lumbosacral spine X-ray report, a VA examiner noted that the Veteran's lumbosacral spine was normal. In a July 2008 VA medical examination report, the VA examiner indicated that he was assigned to examine the Veteran to determine the severity of his lumbosacral strain disability. During an interview, the Veteran stated that he believed that he was to be evaluated for a left knee disorder. He indicated that his lumbosacral strain disability was rated as being 40-percent disabling and that it had not really changed over the increased-rating period. He stated that he had not been prescribed bed rest by a physician (so, by definition, had not experienced any incapacitating episodes) and that he had only missed work occasionally due to his low back disability. He also indicated that all flare-ups had been handled by chiropractic care, a TENs unit, and nonsteroidal anti-inflammatories. The VA examiner indicated that he had examined plain X-rays of the lumbosacral spine and found mostly L5-S1 degenerative disc disease and some mild scoliosis. He added that, in his opinion, the Veteran was not interested in an increased rating for his service-connected lumbosacral strain disability and that the disability was then currently stable. In a November 2008 private physical therapy initial evaluation report, the Veteran reported to the examiner that he had a history of arthritis, presumably of the back. He recounted that he had injured his left knee 30 years prior to examination and that he had been experiencing left knee pain that fluctuated with medication. Upon examination, the private examiner noted the Veteran had sensation to light touch decreased throughout the left lower extremity. The private examiner stated that she was unable to elicit left Achilles tendon reflex upon testing. The private examiner noted that bilateral patellar tendon and right Achilles tendon reflexes were normal. After observing the Veteran's left knee pain, this private examiner stated that some of the Veteran's lower extremity pain was radicular in nature. In a December 2009 VA lumbar spine MRI report, a VA examiner noted a transitional lumbosacral vertebral body, no severe canal or foraminal stenosis, no disc herniation, and mild to moderate facet hypertrophy at L3-L4 and L4-L5. The VA examiner noted there was no neurological compromise due to lumbar spine disease. In a January 2010 private EMG of the lower extremities report, a private examiner reported that the EMG was mildly abnormal, suggesting possible root irritability as well as some chronic changes at the S1 level bilaterally. The private examiner noted no clear evidence of acute denervation. In an October 2011 VA medical examination report, a VA examiner confirmed his review of the relevant evidence of record, including the multiple X-ray reports, the December 2009 MRI report, and the January 2010 EMG report. After examining the Veteran, this VA examiner diagnosed arthritis, specifically the moderate facet hypertrophy noted in the December 2009 MRI report, and confirmed the Veteran had IVDS. But having done so, the VA examiner then indicated the Veteran's currently diagnosed IVDS was less likely than not related to any incident of his military service. The VA examiner noted that the Veteran was not found to have IVDS, specifically facet hypertrophy, until 2009, even though he had experienced back strain onset during the 1970s and had undergone numerous X-ray examinations that were negative for arthritis prior to the 2009 diagnosis. The VA examiner also made clear that the Veteran's IVDS was unrelated to his service-connected lumbosacral strain, explaining that the muscles and spine were different organ systems and a disorder with one would not cause a disorder with another. The VA examiner also stated that the Veteran did not have lower-extremity radiculopathy related to his thoracolumbar spine disorder, so also not on account of his service-connected disability. The VA examiner noted that the 2009 MRI did not show any neurological compromise, to include disc herniation or stenosis, to the Veteran's lumbar spine. Although the 2010 EMG report suggested irritability, the EMG did not indicate any clear evidence of denervation. Therefore, the VA examiner found that the Veteran did not have radiculopathy of the lower extremities related to his service-connected lumbosacral spine disability. In deciding this claim, it is the Board's responsibility to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (noting that the Board, as part of its duties, is to weigh the evidence of record and determine credibility). In this instance, the Board notes that the July 2008 VA examiner indicated finding L5-S1 degenerative disc disease and some mild scoliosis upon review of plain X-ray films. However, that VA examiner did not indicate which X-ray films he was reviewing. Moreover, and in any event, that examiner's findings are contradicted by the respective November 2003 and July 2006 VA X-ray reports, neither of which indicate any degenerative disc disease or scoliosis of the thoracolumbar spine. Moreover, in the more recent December 2009 VA lumbar spine MRI report, a VA examiner reported finding mild to moderate facet hypertrophy at L3-L4 and L4-L5, but no degenerative disc disease at L5-S1 or scoliosis as noted by the July 2008 examiner. Therefore, the Board finds that the July 2008 VA examiner's findings of L5-S1 degenerative disc disease and mild scoliosis of the thoracolumbar spine are outweighed by the other credible medical evidence of record. See id. In the November 2008 private physical therapy initial evaluation report, the private examiner stated the Veteran had lower extremity pain that was radicular in nature. Yet, the private examiner did not note reviewing the claims file, including any X-ray, MRI, or EMG reports, in forming this opinion. By contrast, the October 2011 VA examiner noted reviewing the entire claims file, including all diagnostic studies, prior to writing a diagnosis. Having reviewed the record, interviewed the Veteran, and performed a physical examination, this VA compensation examiner determined the Veteran did not have radicular pain related to or on account of his service-connected low back disability. In explaining these findings, this VA examiner pointed out that the December 2009 VA MRI report did not indicate any neurological compromise of the spine and that the January 2010 private EMG report did not indicate clear evidence of denervation. Therefore, the Board finds that the October 2010 VA examiner's opinion has greater probative value in this matter than the November 2008 private physical therapist's findings. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating the Board may determine the probative value of medical opinions based on their detail, their persuasiveness, and the physicians' access to the Veteran's medical records). An opinion may be reduced in probative value, even when the statement comes from someone with medical training, if the medical issue requires special knowledge. See Black v. Brown, 10 Vet. App. 279 (1997). The probative value of medical opinion evidence is based on such things as the person's knowledge and skill in analyzing the data and the medical conclusion that the person reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). See also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence.). So, in sum, there is no basis for a schedular rating higher than 40 percent for the service-connected lumbosacral strain disability. The Veteran has not met the requirements for a higher schedular rating at any time since one year prior to filing this increased-rating claim, so the Board also cannot "stage" this rating. See Hart, 21 Vet. App. at 505 (indicating the relevant temporal focus is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim). See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering this claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court 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, the RO or the Board must 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 RO or Board must determine whether the claimant'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 (C&P) 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 symptoms associated with the Veteran's service-connected lumbosacral strain disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, so the Board finds that the rating criteria reasonably describe his disability. The symptoms he has reported (specifically, very limited range of motion of his thoracolumbar spine, including because of the extent of his pain) are those specifically contemplated by the schedular rating criteria. His symptomatology is specifically contemplated by the 40 percent rating assigned under 38 C.F.R. § 4.71a, DCs 5292 (2002), DC 5237 (2012). As such, the schedular evaluations contemplate his level of lumbosacral strain symptomatology, and the Board need not determine whether there is an exceptional disability picture that exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). Accordingly, referral for consideration of an extraschedular rating is unwarranted. ORDER The claim for a rating higher than 40 percent for the lumbosacral strain is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs