Citation Nr: 1303153 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 05-24 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine. 2. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from February 1980 to February 1987 and from April 1989 to July 2003. This case comes to the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for degenerative disc disease of the cervical and lumbar spine, each rated 10 percent disabling. The Veteran disagreed with the initial 10 percent ratings made and the effective date of the award. In a June 2011 Decision and Remand, the Board, remanded the claims of entitlement to initial ratings in excess of 10 percent for degenerative disc disease of both the cervical and lumbar spine for further development of the evidence. That has been accomplished and those issues were returned for further appellate consideration. In the June 2011 Decision, the Board also denied the claims for earlier effective dates (prior to April 14, 2004) for the grant of service connection for both degenerative disc disease of the cervical spine and the lumbar spine. That decision set forth findings of fact, conclusions of law, and analysis denying the Veteran's claims for earlier effective dates for the grant of service connection for degenerative disc disease of the cervical and lumbar spine. However, the earlier effective date issues regarding the cervical and lumbar spine were not addressed in the Order, and it appears that the RO has proceeded to issue an August 2012 supplemental statement regarding the issues of earlier effective dates for the grants of service connection for degenerative disc disease of the cervical and lumbar spine. However, those issues were effectively denied in the June 2011 Board decision. A corrective Order is being issued to amend the 2011 decision to clearly reflect the denial in the Order section of that decision. In October 2012 correspondence, the Veteran raised the issue of an increased rating for plantar fasciitis and service connection for pes planus. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the appeal the Veteran's degenerative disc disease of the cervical spine has been manifested primarily by X-ray evidence of arthritis, without limitation of motion. Neither intervertebral disc syndrome nor additional limitation of function has been demonstrated. 2. Throughout the appeal, the degenerative disc disease of the lumbar spine has been manifested primarily by X-ray evidence of arthritis, flexion in excess of 100 degrees at the time of the October 2007 VA examination, and muscle spasm in the muscles of the thoracolumbar spine; intervertebral disc syndrome, ankylosis of the entire thoracolumbar spine or additional limitation of function has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5010 (2011). 2. With the resolution of reasonable doubt, the criteria for an initial rating of 20 percent, but no more, for degenerative disc disease of the lumbar spine has been met throughout the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Codes 5010, 5237 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA 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. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its See Dingess 19 Vet. App. at 490 A November 2007 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while September 2009 and August 2012 supplemental SOCs (SSOCs) readjudicated the matters after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). With regard to the duty to assist, the Veteran's pertinent and available treatment records have been secured. The Veteran has been afforded VA medical examinations in connection with his claim, most recently in October 2007. 38 C.F.R. § 3.159(c) (4) (2011). The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the Veteran's representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). While the Board did attempt to schedule the Veteran for an additional VA compensation examination, in a November 2011 report of contact, the Veteran indicated that he would not report for such an examination if one were scheduled. See 38 C.F.R. § 3.655 (2011). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (2011). Rating Laws and Regulations Service connection for degenerative disc disease of the cervical and lumbar spine was granted by the RO in a July 2005 rating decision. 10 percent initial disability ratings were awarded for each spinal segment under the provisions of Code 5010 from the date entitlement arose in April 2004. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2011). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2011). In this case, the Board has considered the entire period of initial rating claim from April 2004 to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is a factor to be considered. 38 C.F.R. § 4.59. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavourable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242) (for degenerative arthritis of the spine, see also Diagnostic Code 5003). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, unfavourable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavourable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavourable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavourable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavourable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavourable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents unfavourable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavourable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. Diagnostic Code 5243 (effective September 26, 2003) provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS 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 disability rating for IVDS 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Rating Degenerative Disc Disease of the Cervical Spine The Veteran contends that the degenerative disc disease of the cervical spine is more disabling than currently evaluated. He asserts in his correspondence and during testimony at a formal hearing on appeal, that he has pain and cervical strain that is associated with the arthritis. After review of the record, the Board finds that, throughout the appeal, the degenerative disc disease of the cervical spine has been manifested primarily by X-ray evidence of arthritis, without limitation of motion. Neither intervertebral disc syndrome nor additional limitation of function has been demonstrated. Private treatment records in April 2004 show that the Veteran had complaints of cervical pain. X-ray studies of the cervical spine showed normal bony mineralization and alignment with the vertebral heights to be well maintained. There was mild narrowing of the C5-6 disc space. Disc spaces were otherwise unremarkable. The facet joints and posterior elements were intact and there was no evidence of fracture, subluxation or dislocation. The intervertebral soft tissues were negative. On a private examination report dated in June 2004, it was reported that examination of the cervical spine revealed some minimal tenderness in the mid cervical spine in the area of C5-6 that was confirmed by X-ray studies. Range of motion of the cervical spine was described as normal. The diagnosis was early osteoarthritic changes in the cervical spine. On October 2007 VA examination and in an October 2007 report of private treatment received from the Veteran's chiropractor, the Veteran did not report complaints or manifestations of cervical spine disability. As noted, the Veteran was scheduled for a VA examination that was supposed to be conducted in July 2011, but stated that he would not attend the examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b). The record shows that the Veteran has minimal degenerative arthritis in a segment of his cervical spine, with complaints of tenderness in the neck. The examination reports do not document any limitation of motion or functional impairment of the cervical spine. There is no evidence of incapacitating episodes as a result of intervertebral disc syndrome. Although trapezius and rhomboid muscle spasm is shown to be noted during some examinations, as will be described, this is found to be associated with the Veterans thoracolumbar spine disability and will be assessed as part of that disability. See 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994) (Where there is separate and distinct symptomatology of a single condition it should be separately rated. Where the symptomatology of a condition is duplicative or overlapping with symptomatology of another condition, it may not receive a separate evaluation). As the record does not show limitation of motion or incapacitating episodes, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a higher initial rating for degenerative disc disease of the cervical spine, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Rating Degenerative Disc Disease of the Lumbar Spine The Veteran contends that the degenerative disc disease of the lumbar spine is more disabling than currently evaluated. He asserts in his correspondence and during testimony at a formal hearing on appeal, that he has pain and lumbar strain that is associated with the arthritis. It is pointed out by the Veteran's representative that the Veteran had demonstrated muscle spasm on examination. After review of the record, the Board finds that, throughout the appeal, the degenerative disc disease of the lumbar spine has been manifested primarily by X-ray evidence of arthritis, limitation of motion that is no shown to be compensable under the appropriate diagnostic codes, and muscle spasm in the muscles of the thoracolumbar spine. Neither intervertebral disc syndrome, ankylosis of the entire thoracolumbar spine, nor additional limitation of function has been demonstrated. A private treatment record in April 2004 shows that the Veteran had complaints of low back pain. It was noted that the Veteran had a three inch flexion deficit in motion. X-ray studies of the lumbar spine showed a very shallow levoscoliosis of the lumbosacral junction that was most likely positional. Disc spaces and vertebral heights were well maintained, with minimal osteophytic spurring of the superior margins of the L3, L4 and L5 vertebral bodies. The facet joints and posterior elements were intact. There was no evidence of spondylolysis or Spondylolisthesis. The sacrum and SI joints were normal. On a private examination report dated in June 2004, it was reported that examination of the thoracolumbar spine revealed some tenderness primarily in the midthoracic spine from T2 or T3 to T12-L1. Range of motion of the thoracolumbar spine was described as normal. There was some minimal spasm in the left trapezius muscle. Impingement tests were negative and O'Brian test was negative for internal derangement of the shoulders. X-rays of the lumbar spine suggested some early osteoarthritis in the lower lumbar spine, with some early degenerative disc disease. The diagnosis was early osteoarthritic changes in the lumbar spine, with the main pain being primarily in the midthoracic spine and some narrowing of L5-S1. On October 2007, VA examination, the Veteran stated that he had low back symptoms in association with increased physical activity. He had general stiffness and soreness in the morning when he first awoke with flare-ups one to two times per week. He did not experience radicular symptoms and had no episodes of incapacity or functional impairment during the past 12 months. He had some aggravation of low back symptomatology with his normal occupation and work activity that generally responded to Motrin. On examination, he stood erect without evidence of muscle spasm, guarding or lists. He indicated pain at the lumbosacral level. There was no indication of soft tissue swelling, deformity of the lumbar spine or muscle spasm. He had forward flexion in excess of 100 degrees, easily bringing his fingertips to the floor with no associated back pain. The examiner indicated that extension was to 20 degrees but did not indicate whether this was bilaterally. The examiner also indicated that lateral flexion to 20 degrees bilaterally, with only minor discomfort in the low back area. Neurologic examination was normal. Straight leg raising was negative bilaterally to 90 degrees both sitting and supine. Repetitive movements of the Veteran's back were not associated with any evidence of increased symptomatology or evidence of additional functional impairment. The diagnosis was chronic non-specific musculoligamentous strain of the low back. In an October 2007 narrative report from the Veteran's private chiropractor, it was noted that the Veteran had complaints of mid and low back pain with restricted motion. On physical examinations thoracic ranges of motion were restricted in a number of planes, with accompanying subjective complaints. Rhomboid muscle spasm was evident. Lumbar ranges of motion were accomplished actively to normal limits with subjective complaints at the measured extremes. Lumbar paravertebral muscle spasticity was evident as was right sacroiliac tenderness. The pertinent diagnosis was thoracic and lumbar joint dysfunction. The Veteran's thoracolumbar disability is shown to demonstrate limitation of motion at times, which is over 100 degrees of forward flexion. The October 2007 VA examination does not clearly show the combined range of motion as the notation as to extension to 20 degrees doesn't indicate whether the motion is bilateral. As such the limitation of motion would not be considered to be compensable under criteria for rating spine abnormalities. On private examination in June 2004, however, spasm of the trapezius muscle, which is attached to the thoracic spine, was objectively demonstrated. While muscle spasm was not demonstrated on October 2007 VA examination, the report from the Veteran's chiropractor issued that same month noted muscle spasm of the rhomboid, which is also attached to the thoracic spine, as well as lumbar paravertebral muscle spasm. There is no indication in the record of ankylosis of the entire thoracolumbar spine. Under these circumstances, with the resolution of reasonable doubt, the Board finds that the symptoms of the Veteran's lumbar degenerative disc disease more nearly approximate the criteria for a 20 percent rating. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's cervical spine disability is rated as part of arthritis and directly corresponds to the schedular criteria for the 10 percent evaluation for noncompensable limitation of motion (Code 5010), which also incorporates various orthopedic factors that limit motion or function of the neck. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The Veteran's thoracolumbar spine disability is shown to warrant a 20 percent rating which also directly corresponds to the criteria in the rating schedule for evaluation of spinal disabilities (Code 5237). For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's cervical and thoracolumbar spine disabilities, and no referral for an extraschedular rating is required. Finally, there are no indications that the Veteran is not currently employed. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. An initial rating of 20 percent for degenerative disc disease of the lumbar spine is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs