Citation Nr: 1301260 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 04-32 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of entitlement to service connection for an acquired psychiatric disability, variously diagnosed as bipolar disorder and paranoid schizophrenia. 2. Entitlement to a rating in excess of 10 percent for a low back disability, excluding the period from August 2003 to September 2003. 3. Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from May 1981 to November 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefits sought on appeal. The Veteran has raised the issue of individual unemployability. Such claims are considered part and parcel of increased rating claims. See Rice v. Shinseki, 22 Vet. App. 407 (2009). Hence, the Board has taken jurisdiction of the TDIU claim on appeal Pursuant to the Veteran's request, a Board hearing was scheduled and rescheduled on several occasions. Most recently, in April 2011, the Board remanded the case so a hearing could be scheduled. An October 2011 RO letter informed the Veteran his hearing was scheduled for December 1, 2011. However, he failed to appear for his hearing. There is no record of a request for a rescheduling of the hearing. Hence, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d) (2012). FINDINGS OF FACT 1. A November 2002 rating decision denied a petition to reopen a previously denied claim of service connection for a psychiatric disorder (characterized as bipolar disorder and paranoid schizophrenia), as the medical records added to the claims file showed no causal connection with the Veteran's active service and personality disorder shown therein. 2. The Veteran initiated but did not perfect an appeal of the November 2002 rating decision, and no new and material evidence was received within one year of its issuance. 3. The evidence added to the record since the November 2002 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision, as it does not address any missing element of the claim and it does not raise a reasonable possibility of proving the claim. 4. The preponderance of the evidence of record shows the chronic orthopedic manifestations of the Veteran's low back disability to include mild limitation of motion (LOM); the chronic neurologic manifestation is mild bilateral lumbar radiculopathy of the lower extremities. 5. Throughout the rating period on appeal, the Veteran's range of motion of the lumbar spine exceeds 85 degrees and his combined thoracolumbar spine range of motion exceeds 170 degrees. CONCLUSIONS OF LAW 1. The November 2002 rating decision is final. Since that denial, new and material evidence has not been received sufficient to reopen the previously denied service connection claim for bipolar disorder and paranoid schizophrenia and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 3.159, 20.1103 (2012). 2. The requirements for a rating in excess of 10 percent for the chronic orthopedic manifestations of low back pain syndrome with L5-S1 disc herniation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Rating Formula For Diseases and Injuries of the Spine (General Formula), Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decision appealed, VA notified the Veteran in letters of August 2004 concerning the increased rating claim, and in February 2005 with respect to the claim to reopen, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. See 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The February 2005 letter also informed the Veteran of the reasons the prior claim was denied and of the type evidence needed to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Both letters were time-compliant, see 38 C.F.R. § 3.159(b), but neither communication informed the Veteran how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This deficiency was corrected by a March 2006 RO letter and the matters have since been readjudicated, curing the timing defect. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Accordingly, no further development is required with respect to the duty to notify. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. See 38 C.F.R. § 3.159(c) . The Board notes the Veteran received benefits administered by the Social Security Administration. The RO requested any records extant related to the award of Social Security benefits, but no records were provided. The Board notes that extensive private treatment records, in addition to VA treatment records are already associated with the claims file. Thus, the Board finds the Veteran's claim has been adequately developed. Neither the Veteran nor his representative asserts there is additional evidence to be obtained; and, the Veteran was afforded a meaningful opportunity to participate in the adjudication of the claim via the presentation of pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See id. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the 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). Background of Claim to Reopen The Veteran originally applied for VA compensation in 1984 for a nervous condition. A September 1989 Board decision determined that the Veteran's noted in-service symptoms of maladaptive behavior, hostility, and explosiveness, were attributed to a passive-aggressive personality disorder; and, an acquired chronic mental disorder was not demonstrated during service or at separation from active service. Private and VA post-service treatment records up to the Board's decision noted diagnoses of a personality disorder. The September 1989 Board decision denied the claim, as personality disorders are deemed congenital or developmental disorders and not disabilities. See 38 C.F.R. § 3.303(c). The Veteran claimed entitlement to service connection for bipolar disorder in July 1994. He asserted he had been depressed since at least 1982. A February 1995 rating decision considered private and VA treatment records. A September 1989 private Discharge Summary noted Axis I diagnoses of paranoid schizophrenia; atypical depression; and, chronic motor tic disorder. A schizoid personality disorder was noted in Axis II. VA treatment records of August 1994 noted Axis I diagnoses of bipolar disorder and paranoid schizophrenia, and a personality disorder not otherwise specified in Axis II. The February 1995 rating decision determined that there was no evidence of in-service clinical onset or that the Veteran's symptoms manifested within one year of his separation from active service and denied the claim. A March 1995 RO letter informed the Veteran of the decision, and he requested reconsideration of the claim in October 1995. In support of his request, the Veteran related he was then currently hospitalized for treatment of his psychiatric condition, and he had been receiving psychiatric treatment since shortly after his separation from active service. He identified the treatment facilities that would have his records. As is apparent from the date of the Veteran's request, the appeal period for the February 1995 rating decision had not net lapsed. See 38 C.F.R. § 20.302. A March 1996 rating decision determined the additional private and VA treatment records submitted were redundant and cumulative of the evidence already of record, as they only noted the Veteran's treatment of his acquired mental disorders after the one-year post-service presumptive period, none of which included evidence of a causal connection between the Veteran's mental disorder and his active service. Thus, the evidence was not new and material evidence. 38 C.F.R. § 3.156(a). In light of this fact, the February 1995 rating decision in fact became final. 38 C.F.R. § 3.156(b). Further, an April 1996 RO letter informed the Veteran of the March 1996 rating decision, and he did not appeal it and new and material evidence was not received within a year of its issuance. Hence, the April 1996 rating decision also became final. In May 2002, the Veteran again applied to reopen his claim of entitlement to service connection for schizophrenia and bipolar disorder. He submitted his service treatment records in support of his claim. In addition to the service treatment records, the RO also considered additional private treatment records. A November 2002 rating decision again determined the service treatment records showed the Veteran's in-service symptomatology was due to a personality disorder; and, the additional medical records showed treatment for bipolar disorder and schizophrenia, for which there was no evidence of a causal connection with the Veteran's active service. Following notification of the decision that same month, the Veteran initiated an appealed, and a SOC was issued in October 2003. There is no indication or documentation in the claims file that the Veteran submitted a Substantive Appeal and perfected his appeal within the allowable time period. See 38 C.F.R. §§ 20.200 and 20.302. Moreover, no new and material evidence was received within a year of the November 2002 decision. Hence, that rating decision became final. 38 C.F.R. § 20.1103. The November 2002 rating decision is the last final rating decision on the issue of new and material evidence to reopen a claim of entitlement to service connection for bipolar disorder and schizophrenia. VA received the Veteran's most recent application to reopen his claim in April 2005. New and Material Evidence Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(d)(3). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id., at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be presumed for a psychosis, if it manifested at least to a compensable degree within one year of separation from active service, even if there is no evidence the psychosis occurred during active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Analysis The evidence added to the claims file since the November 2002 rating decision includes extensive records of the Veteran's recurring hospitalizations for exacerbations of his acquired mental disorders of bipolar and schizophrenia, to include schizoaffective disorder. These records note his reported history of his multiple hospitalizations that started shortly after his discharge from military service for his personality disorder. There is no notation of a medical opinion that the Veteran's acquired mental disorders had their clinical onset during active service, within one year of separation from active service, or that there is a causal connection between them and the symptoms for which he was treated in service, or are otherwise causally connected to his active service. In light of the above, the evidence added to the record since November 2002 is new, in the sense it was not before rating officials in November 2002, but it is not material, as it is cumulative and redundant of evidence that already was a matter of record. Hence, the Board is constrained to find new and material evidence has not been submitted. 38 C.F.R. § 3.156(a). The claim is not reopened. Increased Rating Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2012). VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2 (2012). VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3 (2012). Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when either disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, if those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45 (2012). Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. § 4.14 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Analysis Historically, service treatment records note the Veteran's treatment for low back pain. An August 1983 rating decision granted service connection for low back pain syndrome with an initial 10 percent rating, effective in November 1982. A March 1985 rating decision reduced the rating to a noncompensable level, effective in June 1985. VA received the Veteran's current claim for an increased rating in May 2002. The August 2004 rating decision on appeal, as noted in the Introduction, awarded a compensable rating of 10 percent, effective in May 2002. It also awarded a temporary 100 percent rating for the period August 18, 2003, to September 30, 2003, due to surgical treatment that required convalescence. Spine disabilities are currently evaluated under the General Formula, effective September 26, 2003. The August 2004 rating decision assigned the current rating under DC 5237 of the General Formula. See 38 C.F.R. § 4.71a. In light of the fact the Veteran's claim was received prior to September 26, 2003, however, the Board must also consider the prior spine rating criteria, if they are more favorable. See generally Karnas v. Derwinski, 1 Vet. App. 308 (1991). The June 2006 Supplemental SOC (SSOC) informed the Veteran of the prior spine rating criteria. The current spine rating criteria, however, may be applied only from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. 38 U.S.C.A. § 5110(g); VA O.G.C. Prec. Op. No. 7-2003 (Nov. 19, 2003). The June 2002 VA spine examination report reflects reported complaints of constant pain and spasms with stiffness, and numbness of the lower extremities. The Veteran reported further that standing and bending aggravated his symptoms; he could not lift more than 40 pounds, and he could walk no more than three blocks. The Veteran used a back brace, though he did not wear it the day of the examination. He denied any bowel or bladder involvement. On a scale of 1 to 10, the Veteran assessed his pain as 7/10, and he took Ibuprofen for relief. Physical examination revealed no gross deformities, spasms, wasting, or weakness, of the thoracic or lumbar spine was noted. The Veteran was able to transfer, stand, and squat, without assistance. Lumbar spine ROM was 0 to 80 degrees on flexion, extension to 30 degrees, and lateral rotation and bending to 30 degrees bilaterally. Patrick's test was negative bilaterally; motor strength was 5/5; deep tendon reflexes of the lower extremities were symmetrical and intact bilaterally, and the Veteran's gait was normal. No pathologic reflexes were appreciated. The examiner noted lumbar spine x-rays were interpreted as unremarkable. The examiner noted the Veteran's subjective complaints, but also noted that the objective findings were minimal. April 2003 private records from T.T., M.D., note the Veteran's complaints of low back pain with stiffness that was aggravated on bending and prolonged sitting and standing. Physical examination revealed paraspinal muscle tightness and ROM or 0 to 85-90 degrees. Straight leg raising was to 90 degrees, knee and ankle jerks were present, and-except for paresthesia of the left toes, sensation was normal. In May 2003, Dr. T noted the paresthesia of the toes was intermittent, there was no motor weakness, and the Veteran ambulated normally. Dr. T referred the Veteran to a regimen of physical therapy. The Veteran was apparently referred to another physician after his treatment by Dr. T. Another physician, Dr. F, noted a May 2003 lumbar spine MRI examination revealing a herniated disc at the L5-S1 level. Physical examination revealed pain on bending. There were no myofacial trigger points on palpation of the lumbar spine. The Veteran's weight was noted as 270 pounds. Dr. F noted he would start a series of three epidural steroid injections since physical therapy had worsened the Veteran's low back pain. Under the pre-amended spine rating criteria, mild lumbar spine LOM warranted a 10 percent rating; moderate LOM, 20 percent; and, severe LOM, a 40 percent rating. 38 C.F.R. § 4.71a, DC 5292 (2002). Words such as "moderate," "moderately severe," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes the objective findings of the June 2002 VA and Dr. T's and Dr. F's clinical examinations showed mild LOM at most. Further, while Dr. F's May entry noted pain on bending, he did not note specific ROM values. The Board finds ROM 0 to 85-90 degrees most nearly approximates mild LOM. 38 C.F.R. § 4.71a, DC 5292 (2002). The Board acknowledges Dr. F's diagnosis of degenerative disc disease (DDD). Nonetheless, his records do not indicate the presence of muscle spasm on extreme forward bending, or loss of lateral spine motion, unilateral, in standing position, which would approximate a 20 percent rating under DC 5295 (2002) for lumbosacral strain. Neither did the June 2002 VA examination report note any objective findings that would approximate a higher rating under DC 5295. The Veteran informed the RO in November 2003 that his pain was constant. As noted earlier, the General Formula became effective in September 2003. Under the current criteria, the General Formula is used to evaluate lumbosacral strain under DCs 5237. Those criteria provide that, 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, 10 percent rating applies if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or combined ROM is greater than 120 degrees but not greater than 235 degrees. A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. The June 2004 VA examination report reflects that an electromyograph was negative for neurological symptoms, and that lumbar spine x-rays were within normal limits. The Veteran complained of continuous sharp pain that he rated 8/10 in intensity. Prolonged sitting and standing, bending, lifting, and walking for long distances aggravated it. The Veteran denied radiating pain to his legs, but he reported numbness in the legs and toes. He denied any bowel or bladder involvement. He reported further that his pain was 10/10 during flare-ups, and that he had moments of incapacitating pain over the prior year. He had a back brace but it had not helped; he also had a transcutaneous electrical nerve stimulation unit. He could walk for less than a quarter-mile, and he walked with pain. The Veteran was independent in his activities of daily living and he could not engage in sports. The Veteran complained of pain during the course of the examination. However, the examiner noted that there were no deformities of the lumbosacral spine. Neither was there wasting or weakness of the paraspinus muscles, but there was positive spasm in the paraspinal lower back. The Veteran was able to transfer, stand, and squat without assistance. Lumbar spine ROM on forward flexion was 0 to 80 degrees, with onset of pain at 40 degrees. Extension was to 10 degrees; lateral rotation to 30 degrees bilaterally; and, lateral flexion to 20 degrees bilaterally. The examiner noted the Veteran's complaints of bilateral leg numbness; there was no fatigue or weakness. Straight leg raising was negative bilaterally, as was Patrick's test. Motor strength of the lower extremities was 5/5; there was no clonus; muscle reflexes were symmetrical and intact; and gait was normal. The examiner referenced the June 2003 MRI examination report showing a small midline herniated disc at L5-S1. The examiner diagnosed chronic low back pain syndrome and opined it was causally related to the Veteran's service-connected low back disorder. The August 2004 rating decision reflects the RO awarded the 10 percent rating under DC 5237 of the General Formula as lumbosacral strain. See 38 C.F.R. § 4.71a. As set forth earlier, LOM of the thoracolumbar spine on forward flexion of at least 0 to 60 degrees but less than 0 to 85 degrees, or combined ROM better than 120 degrees but not greater than 235 degrees, warrants a 10 percent rating. Thus, the objective findings on clinical examination show the Veteran's low back to have more nearly approximated the assigned 10 percent rating. 38 C.F.R. § 4.71a, General Formula. The Board finds a higher, 20 percent rating was not met or approximated under the General Formula, as the Veteran's ROM on forward flexion was better than 0 to 60 degrees, and combined ROM was better than 120 degrees. Further, the June 2004 VA examination report reflects the examiner noted repetitive use testing was conducted, and the Veteran was able to perform it despite his complaints of pain. The examiner did note any additional loss or ROM due to pain or weakness, etc. See 38 C.F.R. §§ 4.40, 4.45, and 4.59. Thus, without a showing of additional functional limitation, a higher evaluation is not warranted based on DeLuca considerations. Again, pain itself does not warrant a higher rating; such pain must result in objectively noted functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). The Board also notes the Veteran's noted report of moments of incapacitating pain. The VA rating criteria define incapacitating episodes as bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, General Formula, DC 5243 Note (1). Further, the General Formula rates intervertebral disc syndrome (IVS) on that basis, and the Veteran is not diagnosed with IVS. As noted earlier, however, the examination findings must also be considered under the prior spine rating criteria. In light of the fact the objective findings on examination are similar to those shown at the June 2002 examination, the Board finds the objective findings at the June 2004 examination do not meet or approximate a rating higher than 10 percent under the prior criteria. The lumbar spine ROM findings were nearly identical to that shown in 2002, which the Board finds approximates mild lumbar spine LOM. 38 C.F.R. § 4.71a, DC 5292 (2002). The Board notes the June 2004 findings of muscle spasm and loss of lateral motion. Although the examiner did not indicate that the lumbar muscle spasm was noted in extreme forward bending, the Board resolves that in the Veteran's favor. See 38 C.F.R. § 4.3. Nonetheless, DC 5295 of the prior criteria required those symptoms to manifest as a result of osteoarthritic changes. 38 C.F.R. § 4.71a, DC 5295 (2002). The June 2004 examination report notes x-rays of the lumbar spine were within normal limits, and the June 2003 MRI examination report did not note the presence of arthritis. Further, the June 2004 examination report does not reflect a finding or diagnosis of arthritis. Thus, the Board finds the orthopedic manifestations also more nearly approximated the assigned 10 percent rating under the prior criteria. 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, DCs 5292, 5295 (2002). The Veteran's VA outpatient records note a January 2005 lumbar spine x-ray examination report that noted the lumbar spine was within normal limits. An April 2005 entry notes a lumbar spine computed tomography report that notes pathology similar to the June 2003 MRI, which was a small right disc herniation at L1-L2, and disc bulges at L3-4, L4-5, and L5-S1. In May 2010, the Veteran informed the RO that he had developed nerve damage as a result of his low back disorder. He submitted a private January 2010 MRI examination report that noted bulging lumbar discs with spurs and thecal sac compression and bilateral neural canal narrowing. Also submitted was a March 2010 private electromyograph report which noted the study was abnormal, in that it showed mild left L4-5 radiculopathy. The RO arranged another examination. The June 2010 examination report reflects the examiner conducted a review of the claims file. The examiner noted the Veteran's psychiatric disability made the examination very, very difficult. The Veteran reported continued low back pain with radiation and numbness and tingling of the lower extremities. He also reported shakiness of his legs all the time. He rated his low back pain as 9/10, and his lower extremity pain 10/10, left more than right. He described his pain as severe, requiring him to lie down. He denied having experienced any incapacitating episodes over the prior 12 months. He denied being under any then current treatment. The Veteran related that his pain was worse when bending or trying to lift more than 40 pounds. The examiner noted the Veteran's reports of intense constant pain of 10/10 but also noted that the Veteran presented for the examination alone, he ambulated unassisted, and he walked from the waiting room to the examination room without difficulty. He complained of numbness and pins and needles in both lower extremities to the tips of his toes. He had his feet bandaged due to sunburn, and the examiner advised him to seek treatment in the emergency room. The Veteran denied any bowel or bladder incontinence, but he reported urinary urgency and erectile dysfunction. He denied the use of a back brace, crutches, or walker, but reported he used a cane to get around. He reported further he could walk four and one-half to five blocks limited by pain. The Veteran reported he had fallen three times in the past month and that pain awakened him from sleep at night. He reported he was able to attend to his activities of daily living, and he did not drive. Physical examination revealed the Veteran as morbidly obese at 260 pounds. The Veteran sat in a reclined position while in the waiting room and he was able to rise from his chair and ambulate the 40 feet to the examination room. He held on to the chair to sit, stand, and transfer, and he used the arm rests to stand from a seated position. The examiner noted considerable guarding during the course of the examination, and the Veteran was extremely anxious. There was tenderness to palpation all over the thoracolumbar spine, spinous process, and thoracolumbar paraspinals. No gross spasm was appreciated. The examiner noted that it was difficult to examine the Veteran due to his expressed pain and overlying psychiatric condition. ROM on forward flexion was 0 to 10 degrees. The Veteran declined to bend any further than 10 degrees; the examiner noted, however, that the Veteran was able to sit in a chair in the examination room flexed to 90 degrees. Backward extension was to five degrees, with the Veteran again refusing to go any further. Lateral flexion was to five degrees bilaterally, and lateral rotation was to 10 degrees bilaterally, all with complaints of pain. When asked to perform repetitive use testing, the Veteran declined, as he complained it would be too painful. Considerable peripheral edema with 2+ pitting was noted in both lower extremities. The examiner noted he was unable to appreciate deep tendon reflexes or patellar and Achilles' reflexes bilaterally. No foot drop, clonus, or atrophy of the lower extremities were noted, however. Straight leg raising while seated was unremarkable bilaterally. Decreased sensation in a stocking-glove distribution was noted in the left lower extremity. Pulses in the lower extremities were intact and symmetrical. The examiner noted the January 2010 private MRI and the March 2010 electromyograph. Also noted were June 2010 lumbar spine x-rays, which revealed significant pathology. The examiner opined that the Veteran's lumbar radiculopathy was due to his service-connected low back disorder. The Board finds the objective findings on clinical examination to be representative of the assigned 10 percent rating under the prior and current spine rating criteria. The Board notes the apparent forward flexion of 0 to 10 degrees. However, the examiner specifically noted that the manner by which the Veteran sat in a chair, when he was not aware he was observed, required him to flex his lumbar spine to 90 degrees, which is normal ROM for the lumbar spine. See 38 C.F.R. § 4.71a, Plate V (2012). The Board finds the observations of the trained medical examiner more persuasive than the Veteran's questionable effort at the examination. Indeed, in light of the Veteran's noted lack of effort, the Board does not find a factual basis to infer an additional loss of ROM due to pain, etc., since he refused to perform repetitive use testing. Moreover, while the examiner did not expressly estimate additional pain during periods of flare-up, without repetitive testing results at the examination to use as a baseline, it would not be expected that such information could be provided. In any event, as the Veteran's stated constant baseline pain was between 9/10 and 10/10, it would therefore appear that his symptoms on flare-up would not be substantially different from his baseline level of disability. Moreover, while the Board has considered further developing this case, to include arranging for another examination, such would not likely yield additional information given the documentation in the last examination report indicating a less than complete effort exerted by the Veteran. Further in this regard, there is a distinct possibility that the Veteran was overstating his symptoms, as he indicated a constant pain of 9/10 or 10/10 yet, as noted by the examiner, was able to walk without assistive devices. Neurological Manifestations The private records and the June 2010 examination report note the findings of lower extremity lumbar radiculopathy. A rating decision reflects a 10 percent rating was assigned for each lower extremity, effective in June 2010. See 38 C.F.R. § 4.124a, DC 8520. There is no indication in the claims file that the Veteran disagreed with either the initial rating or effective date of the decision. Thus, the Board will not discuss the rating for the neurological manifestations any further. Extraschedular Consideration The Board notes the notation in the VA examination reports that the Veteran reported he was unable to work due to his low back pain, and that he had worked part time, at most due to his low back pain. This raises the issue of the propriety of referral for consideration of a higher rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). Applicable Legal Requirements In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits (Under Secretary) or the Director, Compensation and Pension Service (Director), upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular 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 Board is precluded from granting an increased rating on an extraschedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extraschedular rating. Bagwell, 9 Vet. App. at 339. Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional. To do so, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008). Analysis The Board finds a comparison of the schedular rating criteria and the Veteran's low back symptomatology shows the rating criteria describe the disability and the levels of its severity. As discussed earlier in detail, both the prior and current spine rating criteria describe and provide for the chronic orthopedic and neurological manifestations of the Veteran's reported symptoms and their severity. Thus, the rating schedule contemplates the Veteran's low back disability picture, which means it is not exceptional, and the applicable analysis ceases at this point. Id. In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt where applicable. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, variously diagnosed as bipolar disorder and paranoid schizophrenia. The petition to reopen is denied. Entitlement to a rating in excess of 10 percent for a low back disability, excluding the period August 3, 2003, to September 30, 2003, is denied. REMAND As noted earlier, the Veteran asserted at all of the VA examinations that he has been unemployed for several years, and that he is unable to obtain and maintain substantially gainful employment due to his low back disability. The VA examination reports did not address the impact of the Veteran's low back disorder on his employability. Thus, the case must be remanded for a medical assessment of the Veteran's employability. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated the Veteran for a his low back disability, since August 2012. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. The AMC/RO will ensure that duplicative records are not obtained. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After the above is complete, the AMC/RO will arrange an examination by an appropriate examiner(s). Ask the examiner to opine whether there is at least a 50-percent probability that the Veteran's low back disability renders him unable to obtain and maintain substantially gainful employment, without regards to his age. If examiner is unable to separate the impact of the Veteran's low back disability on his employability from the impact of his nonservice-connected acquired mental disorders, the examiner is asked to provide a full explanation why. In any event, the examiner is asked to provide a full explanation for any opinion rendered. 3. Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. 4. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs