Citation Nr: 1302459 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 10-30 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detriot, Michigan THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected hypertension. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative joint and disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The Veteran had active service from September 1987 to June 2000. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In that decision, the RO granted service connection for hypertension and degenerative joint and disc disease of the lumbar spine and assigned noncompensable and 10 percent disability evaluations, respectively, effective from February 19, 2008. FINDINGS OF FACT 1. Resolving the benefit of doubt in the Veteran's favor, his hypertension has been manifested by a history of diastolic pressure of 100 or more which requires continuous medication for control. 2. Throughout the rating period on appeal, the Veteran's hypertension has not been manifested by diastolic readings predominantly 110 or more or systolic readings predominantly 200 or more. 3. Throughout the rating period on appeal, the Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine to 60 degrees or less, combined range of motion of the thoracolumbar spine to 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. He has not had incapacitating episodes with a total duration between two to four weeks. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no higher, for hypertension have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104 Diagnostic Code 7101 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for degenerative joint and disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2010); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for hypertension and degenerative joint and disc disease of the lumbar spine. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for his hypertension and degenerative joint and disc disease. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. He has not identified any outstanding records that are relevant to his hypertension and lumbar spine disability. In addition, the Veteran was afforded VA examinations in connection with his claims in October 2008, July 2009, and September 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on an examination and fully address the rating criteria that are relevant to rating the disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole- recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture presented more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. I. Hypertension The Veteran contends that his symptoms warrant a higher rating. Specifically, he reports that he uses continuous medication to control his hypertension. He is currently assigned a noncompensable evaluation for hypertension pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent evaluation is assigned for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or, minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more. A 40 percent evaluation is warranted for diastolic blood pressure of predominantly 120 or more, and a 60 percent evaluation is warranted for diastolic blood pressure of predominantly 130 or more. The Veteran was afforded a VA examination in October 2008 during which he reported having a diagnosis of borderline hypertension in service that he had managed with a salt-restricted diet and exercise. He indicated that he continued to follow a salt-restricted diet, but was no longer able to exercise due to other health problems. He stated that he was not taking medication to control hypertension. The Veteran also denied having frequent dizzy spells, headaches, blood clots, strokes, heart problems, kidney problems, and hospitalizations related to hypertension. On examination, his blood pressure was 144/96, 140/94, and 140/94. The examiner diagnosed hypertension related to active service. VA outpatient treatment records dated between May 2005 and September 2011 reflect that the Veteran's blood pressure was measured on numerous occasions. Prior to February 2009, systolic pressure was measured in the range of 130 to 154 and diastolic pressure ranged from 77 to 98. The Veteran sought treatment in January 2009 for extended symptoms of hypertension, including seeing black spots, headaches, lightheadedness, and ringing in the ears. In February 2009, a treadmill stress test to assess a heart disability was aborted when the Veteran's blood pressure suddenly increased to 146/101. At that time, hydrochlorothiazide (HCTZ) was prescribed to treat hypertension. The Veteran was afforded a VA examination in July 2009 during which he reported that his hypertension had worsened and that he was taking medication. He stated that his blood pressure was under control and that he no longer "sees spots." On examination, his blood pressure was 129/74, 117/73, and 130/85. The examiner noted that continuous medication was necessary to control hypertension. Treatment notes from January 2010 indicate that he continued to take HCTZ as well as Lisinopril for hypertension. The Veteran was afforded a VA examination in September 2011 at which time he reported that he used two daily medications for high blood pressure. He denied having any side effects from the medication, although he had occasional dizziness. Blood pressure readings at that time were 128/84, 126/82, and 126/82, and the examiner noted that his condition was well-controlled with medication. Based on the foregoing evidence, the Board concludes that a disability rating of 10 percent, but no higher, is warranted for the Veteran's service connected hypertension. Although the Veteran's diastolic blood pressure is typically below 100, the evidence reflects that his diastolic pressure did increase to 101 during exertion in February 2009, and since then, he has continuously used medication to control his symptoms. Blood pressure readings since February 2009 have been markedly lower, and two VA examiners have concluded that continuous medication is necessary to control his hypertension. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for his service-connected hypertension. The Board has also considered whether a rating in excess of 10 percent is warranted for the Veteran's hypertension. However, the evidence shows that the Veteran's blood pressure has been measured numerous times over the course of the present appeal, and his diastolic pressure has never measured 110 or greater. Systolic pressure was at or below 160 at all times, and it did not approach 200 on any occasion. Thus, the criteria for a rating in excess of 10 percent for hypertension have not been met. II. Lumbar Spine Disability The Veteran is seeking a higher initial evaluation for his degenerative joint and disc disease of the lumbar spine. He is currently assigned a 10 percent disability evaluation for that disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under Diagnostic Code 5003. Diagnostic Code 5003 states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be the General Rating Formula for Diseases and Injuries of the Spine. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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 disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 contemplated when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Further, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 0 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 normal combined range of motion range of motion of the thoracolumbar spine is 230 degrees. The normal ranges of motions 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 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). See also 38 C.F.R. § 4.71a, Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (3). In this case, the Veteran was afforded a VA spine examination during which he reported having low back pain beginning in service because of heavy weight lifting. He described his low back pain as a 7 on a 10 scale, which occurred a few times each month for a period of 2 to 3 days. He stated that he could not stand for more than 1 hour, walk more than 1 1/2 miles, climb more than 2 flights of stairs, or perform frequent bending. The Veteran denied having lumbar radiculopathy or any parasthesias of the lower extremities. He did not use a back brace or assistive device and had not undergone any back surgeries, although he did receive physical therapy off and on for the previous six months with some improvement. The Veteran reported that he was able to perform the usual duties of his occupation, and he had no incapacitating episodes or flare ups. On examination, there was no tenderness or paraspinal muscle spasm, and the Veteran was able to stand erect without support. He had forward flexion in the lumbar spine to 80 degrees, extension to 25 degrees, and right and left lateral rotation and flexion to 30 degrees each. There was no pain with movement and no additional loss of motion, pain, weakness, fatigue, or lack of endurance with repetition. X-rays revealed mild degenerative changes of the lower lumbar spine with narrowing of the disk spaces at L3-4, L4-5, and L5-S1. The examiner diagnosed him with degenerative joint and disc disease related to active service. VA outpatient treatment records reflect that the Veteran complained of lumbar pain after shoveling snow in January 2009. The claims file contains the report of a private MRI conducted in January 2009, which revealed mild focal central bulge of disc material at L5-S1 that was not large enough to cause significant pathology. At L4-5, there was a mild diffuse central bulge of disc material, but no herniation or stenosis. At L3-4, there was disc dessication and disc space narrowing compatible with mild degenerative disc changes. A mild diffuse bulge was present centrally and, although it did not appear large enough to cause significant pathology, it combined with bilateral facet hypertrophic changes to cause borderline stenosis. The remainder of the spine appeared normal. VA outpatient treatment records dated in March 2009 reflect that the Veteran complained of back pain radiating down the posterior aspects of both lower extremities as well as numbness in the toes and feet bilaterally, mostly on the plantar surface. An EMG found no evidence for lumbar radiculopathy or peripheral neuropathy. The Veteran was afforded a VA examination of his spine in July 2009 during which he described intermittent lumbar pain with severe flare ups every 2 to 3 weeks, occasionally requiring bed rest. He reported having numbness and tingling alternating between his lower extremities that was alleviated by changing position or using a pillow. He used prescription medication for pain and spasm as needed. The Veteran reported that his primary care physician had ordered 3 days of bed rest in the past year due to an injury at work. He had no limitation on walking, but used a cane when his back pain was severe. On examination, posture was normal with no objective evidence of spasm or atrophy, but there was guarding, pain with motion, and tenderness in the thoracic sacrospinals. The Veteran had forward flexion to 90 degrees, extension to 30 degrees, left and right lateral rotation to 40 degrees, and left and right lateral flexion to 30 degrees. There was objective evidence of pain following repetitive motion, but no additional limitation. An x-ray of the lumbar spine was deemed essentially negative. The examiner diagnosed the Veteran with degenerative disc disease at L3-4, which was found to have mild to moderate effects on the Veteran's daily activities. The Veteran reported that he was unemployed due to a back injury. VA outpatient treatment records reflect that the Veteran underwent physical therapy for his back disability in August 2009 and January 2011. In January 2010, the Veteran sought treatment for severe low back pain for several days after shoveling snow. During a VA examination in September 2011, the examiner stated that the Veteran had left his last job because he was unable to walk, bend, or lift as required due to his back disability. The Veteran was afforded a VA examination of his back in September 2011 in which he complained of ongoing low back pain at 3 or 4 on a 10 scale which occurred with activities involving bending, lifting weight, or prolonged standing or walking. He denied radiculopathy or parasthesias in the lower extremities, and he did not have incapacitating episodes. He reported that he had been employed full-time since March 2011 as an employee specialist. On examination, lumbar spine alignment was normal without muscle spasm and with minimal tenderness. The Veteran exhibited forward flexion to 75 degrees, extension to 20 degrees, and right and left lateral rotation and flexion to 25 degrees. He had no pain with movement, and there was no pain or additional loss of motion with repetition. Muscle strength and reflexes were normal in both lower extremities, and sensation was intact. Applying the rating criteria to the evidence, the Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's lumbar spine disability. Initially, the Board notes that the Veteran is already assigned a 10 percent disability evaluation for his disability, and there is no X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Thus, a higher initial evaluation is not warranted under Diagnostic Code 5003. In addition, the Veteran has not been shown to have forward flexion limited to less than 60 degrees or a combined range of motion of the thoracolumbar spine of less than 120 degrees. The aforementioned range of motion findings clearly demonstrate that he does not meet such criteria. Moreover, the evidence does not show the Veteran to have muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. In fact, he did not have any tenderness or paraspinal muscle spasm during the October 2008 VA examination. It was noted that he was taking medication for pain and spasm during the July 2009 VA examination, but there was no objective evidence of spasm on examination, and his posture was considered normal. Similarly, the September 2011 VA examination revealed no muscle spasm and there was only minimal tenderness. In addition, a January 2009 MRI revealed a normal spine except for disc bulging, and the September 2001 VA examination found his lumbar spine alignment to be normal. In addition, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least two weeks. In fact, the Veteran denied having incapacitating episodes during the October 2008 VA examination. He did tell the July 2009 VA examiner that his primary care physician had ordered three days of bed rest in the past year, but even so, the duration clearly does not meet the criteria for an increased evaluation. As such, he has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. After reviewing the record, the Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability. The evidence of record does not identify any separate neurological findings or disability. In fact, the Veteran denied having lumbar radiculopathy or any paresthesias of the lower extremities at the time of the October 2008 VA examination. VA treatment records dated in March 2009 did later document complaints of radiating pain and numbness in the toes and feet, and the Veteran reported numbness and tingling in his lower extremities during the July 2009 VA examination. However, an EMG found no evidence for lumbar radiculopathy or peripheral neuropathy. Such objective testing clearly outweighs any lay assertions of symptomatology, as there is no basis for a diagnosis. Moreover, the Veteran later denied having any radiculopathy and paresthesias in the lower extremities during the September 2011 VA examination, and a physical examination at that time revealed normal muscle strength and reflexes with intact sensation. Thus, despite the Veteran's subjective complaints, there was no evidence of such symptomatology upon examination, and he later denied such symptomatology. Therefore, the Board concludes that the preponderance of the evidence shows that the Veteran does not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman, 6 Vet. App. at 129-132. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 10 percent disability evaluation under Diagnostic Code 5242. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the October 2008 VA examiner stated that there was no pain with movement and no additional loss of motion, pain, weakness, fatigue, or lack of endurance with repetition. The July 2009 VA examiner also noted that there was objective evidence of pain, but no additional limitation. In addition, he September 2011 VA examiner commented that there was no pain with movement, or pain or additional loss of motion with repetition. Therefore, the Board finds that the preponderance of the evidence is against a higher initial evaluation for the Veteran's degenerative joint and disc disease of the lumbar spine. III. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's hypertension lumbar spine disability are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, these rating contemplate the Veteran's blood pressure readings; medication for hypertension; limitation of lumbar spine motion; incapacitating episodes; muscle spasm, guarding, and abnormal gait and spinal contour; and, pain and functional loss. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected hypertension lumbar spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). IV. TDIU Consideration The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not asserted, and the evidence does not show, that his service-connected hypertension has rendered him unemployable With respect to his service-connected lumbar spine disability, the October 2008 VA examiner stated that the Veteran was able to perform the usual duties of his occupation. The Veteran did tell the July 2009 VA examiner that he was unemployed due to his back injury, and the September 2011 VA examiner indicated that he had left his last job because he was unable to walk, bend, or lift as required. However, the latter examiner specifically noted that the Veteran had since obtained full-time employment. Thus, given the fact that he is working full-time, it is clear that the Veteran is employable. Based on the foregoing, the evidence and the Veteran's own statements have not reasonably raised the question of whether he is unemployable due to the disabilities for which the increased ratings are sought. ORDER From February 2009, a disability rating of 10 percent, but no higher, for service-connected hypertension is granted. A disability rating in excess of 10 percent for service connected degenerative joint and disc disease of the lumbar spine is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs