Citation Nr: 1302997 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 10-26 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a disability rating in excess of 20 percent for spondylolisthesis of the lumbar spine at L5-S1. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to September 1955 and from December 1955 to October 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which continued the Veteran's currently assigned 20 percent disability rating. The RO denied entitlement to a total disability rating based upon individual unemployability in May 2009. The Veteran did not appeal this determination. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009) (Noting that is permissible for the Secretary to bifurcate TDIU from the adjudication of an increased rating claim in appropriate circumstances.). In April 2011, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). A transcript of that hearing is of record. In March 2012, the Board remanded the issue for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's spondylolisthesis of the lumbar spine at L5-S1 is not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or IDS (Intervertebral Disc Syndrome) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected spondylolisthesis of the lumbar spine at L5-S1 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the issuance of the December 2008 rating decision that is the subject of the appeal; the Veteran was advised of the evidence necessary to substantiate a claim for an increased rating and of his and VA's respective duties in obtaining evidence. (See VCAA letters dated in June 2008 and July 2008). Additional VCAA letters were sent in April 2011, May 2012, and June 2012 with subsequent readjudication in a November 2012 Supplemental Statement of the Case (SSOC). Accordingly, the duty to notify has been fulfilled as to this claim. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty has also been met, as the Veteran's service, VA and private treatment records have been associated with the claims folder and he was afforded several VA examinations in connection with his claim in August 2008, April 2010, June 2011, and June 2012. VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the reports reflect review of the claims file and assessment of the Veteran's contentions and disabilities, the reports are adequate. Although the April 2010 and June 2011 VA examinations were not signed, the lack of a signature does not automatically make an examination inadequate. The Veteran fails to demonstrate that the reports were not transmitted via the CAPRI system, as permitted by the M21-1MR, or that they are otherwise inadequate, so as to rebut the presumption of administrative regularity. See Johnson v. Shinseki, 23 Vet. App. 344 (2010). The duty to assist in the gathering of records and obtaining a VA examination has been met and the RO/AMC has substantially completed the May 2012 remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The record does not suggest the existence of additional, pertinent evidence that has not been obtained. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). II. Increased Rating for a Low Back Disability The Veteran filed this claim for an increased rating for his spondylolisthesis of the lumbar spine at L5-S1, currently rated at 20 percent, in May 2008. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service treatment records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Service connection for spondylolisthesis of the lumbar spine at L5-S1 was granted pursuant to 38 C.F.R. § 4.71a, DC 5293, with a 20 percent evaluation effective November 1, 1980. Effective from September 26, 2003, disabilities of the lumbar spine (other than IDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51, 454 (Aug. 27, 2003), now codified at 38 C.F.R. § 4.71a, DCs 5235-5243 (2012). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id., and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. at 51, 455 (Supplementary Information). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) (2012). The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a (2012). Ratings in excess of 20 percent are provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of entire spine (100 percent). Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). 38 C.F.R. § 4.71a, Note (2) provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2012). Under the criteria governing disabilities of the lumbar spine, IDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes. This formula provides a rating of 20 percent for IDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2012). An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1) (2012). DC 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 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 20 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. The rating criteria for limitation of motion of the spine were discussed above. The Veteran reported chronic back pain in a May 2008 VA treatment record. An August 2008 VA examination reflects complaints of a dull ache that radiated to the Veteran's left lower extremity. The pain increased with prolonged sitting and movement. He took Hydrocodone and Acetaminophen daily for the pain. The Veteran had not required bedrest for pain relief in the past 12 months. However, he reported flare-ups that lasted approximately 24 to 36 hours every 4 to 5 days to 2 weeks. The Veteran reported urinary incontinence, but did not use a pad. He had erectile dysfunction due to prostate cancer, but no fecal incontinence. He did all activities of daily living without assistance. He used a corset, reach extender, bathroom handle bars, and Velcro shoes to assist with his limitation of motion. Upon physical examination, the Veteran's gait was normal. He had moderate kyphosis of the upper thoracic spine. The straight leg raising test was objectively positive for lumbar pain at 45 degrees on the left. It was negative on the right. Thigh rotation was negative and one leg stand revealed muscle spasm on the right. Flexion was 0 to 40 to 58 degrees with pain from 40 to 58 degrees. Extension was 0 to 16 degrees and left lateral flexion 0 to12 degrees. Left lateral rotation 0 to 10 degrees. Right lateral rotation 0 to 10 degrees. After repetitive motion, forward flexion was 0 to 58 degrees with pain as noted above. Extension was 0 to 18 degrees. Left lateral flexion 0 to 14 degrees. Right lateral flexion was 0 to 12 degrees. Left lateral rotation 0 to 12 degrees. Right lateral rotation 0 to 10 degrees. The objective pain was present mainly with forward flexion and no other objective signs were seen. The neurological examination was normal except for slight decreased sensation of the toes. The Veteran attributed this to other causes such as diabetes. Deep tendon reflexes were decreased but normal. The x-ray of the lumbar spine revealed the following: degenerative changes of the L spine with diffuse disk space narrowing. Severe disk space narrowing and grade II spondylolisthesis at L5/S1. The x-rays noted diffuse spondylitic spurring, especially at the L5 and S1. The Veteran was diagnosed with spondylolisthesis of the lumbar spine and degenerative disk disease of the lumbar spine with diffuse disk space narrowing. The examiner noted that there was severe disk space narrowing associated with the grade II spondylolisthesis at L5/S1. The examiner stated that he was unable to estimate function in a flare-up without undue speculation, but highlighted decreased range of motion and objective pain. An April 2010 VA orthopedic examination reflects complaints of pain and difficulty sleeping because of the pain. The pain radiated to the left buttock region into the leg. The Veteran stated that the left leg "gave out." There was no loss of bowel or bladder control. He was independent in his activities of daily living. He used a cane on rare occasions and used a back support for yard work. Upon physical examination, the Veteran walked with a normal gait pattern with no assistive devices. He was able to stand erect. Ranges of motion consisted of 0 to 65 degrees of flexion and 0 to 15 degrees of extension. He had 0 to 20 degrees of right and left lateral bending and 0 to 30 degrees of right and left lateral rotation. He reported pain on motion at endpoint with associated grimacing. There was no additional limitation of motion after repetitive motion and no objective evidence of spasm or tenderness. The Veteran was diagnosed with advanced multilevel degenerative disc disease and spondylosis. With regards to Deluca factors, there was no additional limitation of motion after three repetitive motions. The Veteran was independent with his activities of daily living. With regards to occupational impairment, the Veteran had physical limitations that included prolonged sitting, standing, repetitive bending, heavy lifting, and/or walking. The VA examiner deferred any neurological opinions to the neurologist's findings of April 2010, which found that there were no neurological deficits that could be ascribed to the lumbar spine disease. He reported incomplete sensory loss in the feet, which was more likely attributable to diabetes. The April 2010 VA neurological examination found no neurological deficits that could be ascribed to the lumbar spine disease. Private treatment records from DR. B.V. noted increased back pain for three weeks. The pain was severe and the Veteran's back gave out causing him to fall several times daily. The physician noted that the Veteran was "very trustworthy." (See Private Treatment Records dated February 2010 to November 2011). In a March 2011 written statement, the Veteran stated that he experienced numbness and tingling radiating from the lower back down into the upper hips and especially the left leg. In a June 2011 VA examination, the VA examiner noted that the Veteran had constant pain that waxes and wanes in the low back. The Veteran denied numbness, but had weakness. He could walk a few hundred feet before it hurt too much. He had to rest after 5 minutes. He denied sphincter disturbance. Upon examination, the Veteran had normal gait with fair heel/toe/tandem walk. Motor strength was 5/5 with normal tone and bulk. Sensory was intact to pin and prick. Vibration sense was mildly impaired at the ankles. Reflexes 2+ and equal in the UEs, 1+ and equal at knees, absent at ankles. SLR was negative. The Veteran was diagnosed with mild incomplete sensory loss in the feet that was likely due to diabetic neuropathy. The examiner noted that he had no motor or sensory findings or complaints of lumbar radiculopathy. A June 2012 VA neurological examination reflects complaints of constant pain that increased with activity. The Veteran was examined by a neurologist. The Veteran stated that the pain radiated down the back of the left to the foot. He denied numbness, but had weakness. He could walk about 100 yards. Upon physical examination, the Veteran had normal gait and station with good heel/toe walk. He had trouble with tandem gait. Motor strength was 4/5 with poor effort with most muscle groups and normal tone and bulk. Sensory was intact to fine touch. Temperature sense was decreased and vibration was mildly impaired at the ankles. The Veteran was assessed with no motor or sensory deficits referable to the lumbar spine. He had mild incomplete sensory loss in the feet due to diabetic polyneuropathy. A June 2012 VA orthopedic examination reflects complaints of constant pain that increased with physical activity. He had pain and cramping in the left leg on occasion, but no numbness and tingling of the legs. He has a history of diabetes type 2. There was no loss of bowel or bladder sphincter function. He does not have flare-ups of excruciating pain since his back fused. His wife stated that he was totally disabled and that she was his caregiver. Forward flexion was 65 degrees with pain at 50 degrees. Right lateral flexion was 15 degrees with pain. Right lateral rotation was 30 degrees with pain. Left lateral rotation was 25 degrees with pain. The Veteran was able to perform repetitive-use testing with 3 repetitions. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing, but he had less movement than normal. There was no pain to palpation for joint and/or soft tissue or guarding or muscle spasm of the thoracolumbar spine. There were no other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The Veteran had IVDS of the thoracolumbar spine, but had no incapacitating over the past 12 months due to IVDS. The examiner noted that an April 2010 x-ray revealed advanced multi-level degenerative disc disease and grade 2 spondylolisthesis with spondylolysis at L5-S1. There was no acute fracture or destruction. The thoracolumbar spine impacts the Veteran's ability to work. The VA examiner noted that he retired in 1999 from his job as an oilfield mud logger. He was unable to do his job at times due to his back pain. It was as likely as not that he would now be restricted to no more than sedentary type work due to his back condition. The Veteran stated that he had an inability to stand, walk, or sit without severe discomfort/pain. (See August 2008 Written Statement). The Veteran also stated that he had constant pain. (See May 2009 Notice of Disagreement). He testified that he took constant medication for pain (5 pain pills daily) and that he could not bend over 12 inches. The Veteran further testified that he had fallen a few times because he lost motion in his leg. He further stated that the pain goes down from the lower back to the hip, down the left leg to the ankle. (See April 2011 DRO Hearing Transcript, p. 2). He used a cane a few times a week and wore a back brace. He further stated that the VA examination did not accurately assess his back disability. (Id. at 4). The Veteran is competent to attest to the occurrence of lay-observable events or the presence of a disability or symptoms of a disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, significantly more weight is placed on the objective clinical findings reported on examination than the Veteran's statements. The evidence of record does not support the assignment of a rating in excess of 20 percent at any time since the one-year period before he filed his increased rating claim. There is no evidence that the Veteran's thoracolumbar spine exhibited forward flexion to 30 degrees or less or that he has favorable ankylosis of the entire thoracolumbar spine so as to support the assignment of the next higher (40 percent) rating under the General Rating Formula for Diseases and Injuries of the Spine. Rather, forward flexion was, at worst, measured at 40 to 58 degrees. (See August 2008 VA examination report). There is also no evidence of IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months so as to support the assignment of the next highest (40 percent) rating under the Formula for Rating IDS Based on Incapacitating Episodes. (See August 2008 and June 2012 VA examination reports). Consideration has been given to functional impairment and effects of pain on functional abilities. However, there was no additional limitation of motion due to pain on use, including flare-ups and also due to weakened movement, excess fatigability, or incoordination. (See August 2008 and April 2012 VA examinations). Moreover, the examiner indicated that pain was not significantly limiting the functional ability during a flare-up of the spine when used repeatedly. The Board finds that a rating in excess of 20 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca. Even taking into account the findings noted above, the Veteran would not meet the criteria for the next higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243 (2012). While the evidence tends to show that the Veteran does experience some painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43. The Board has also considered whether the Veteran manifests any associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1) (2012). The Board acknowledges that the Veteran reported weakness and radiating pain in his left leg throughout the appellate period. A separate rating for a neurological disability is not warranted. The VA examiners made clear that there were no neurological findings related to the service-connected back disability. In the absence of any medical evidence of a diagnosis related to neurological abnormality associated with the Veteran's service-connected spondylolisthesis of the lumbar spine at L5-S1, the evidence of record does not support the assignment of a separate rating. While the Veteran was diagnosed as having urinary incontinence and erectile dysfunction, these were attributed to a nonservice-connected disability as opposed to the service-connected back disability. A September 2008 genitourinary and stomach/duodenum examination noted that the Veteran had erectile dysfunction since his TURP in 1997. The June 2012 orthopedic examination noted that there were no other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). Further, the Veteran does not have any scars related to his back that would warrant a separate rating. (See June 2012 VA examination). Thus, there are no other residuals of the Veteran's service-connected disability that would warrant a separate rating. The disability has been no more than 20 percent disabling since a year prior to the receipt of the claim for a higher rating, so the Veteran's rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition since that date. Hart, supra. In adjudicating this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. III. Extraschedular consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court recently clarified the analytical steps necessary to determine whether referral for extraschedular 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 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms exhibited include pain, limitation of motion, and weakness, which are contemplated by the rating criteria (i.e., 38 C.F.R. §4.71a, 4.40, 4.45, DCs 5235-5243), which reasonably describe the Veteran's disability. Therefore, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER A disability in excess of 20 percent for spondylolisthesis of the lumbar spine at L5-S1 is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs