Citation Nr: 1304072 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 06-18 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a higher initial evaluation for lumbosacral degenerative disc disease, rated as 10 percent disabling from August 1, 2005, to March 19, 2012, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In that decision, the RO awarded service connection for chronic lumbar strain and assigned a noncompensable (zero percent) disability rating, effective August 1, 2005. The Veteran disagreed with the disability rating assigned. In an April 2007 rating action, the RO increased the Veteran's lumbar strain disability rating to 10 percent, effective June 20, 2006, and in February 2008, the effective date of the 10 percent rating was changed to August 1, 2005, and the Veteran's disability was recharacterized as lumbosacral degenerative disc disease. On July 9, 2010, the Veteran appeared and testified at a hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The matter of entitlement to a disability rating greater than 10 percent was previously before the Board in December 2011, at which time it was remanded for further development. Among other things, the Board found that a new examination was necessary to determine the current severity of the Veteran's service-connected low-back disability. After completion of the requested development actions in compliance with Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting Board's duty to "insure [the RO's] compliance" with the terms of its remand orders), the Appeals Management Center (AMC), in a rating action dated in June 2012, increased the Veteran's disability rating to 20 percent, effective March 19, 2012. A Supplemental Statement of the Case (SSOC) was issued that same month addressing whether the Veteran was entitled to an initial evaluation for lumbosacral degenerative disc disease greater than 10 percent from August 1, 2005, to March 19, 2012, or greater than 20 percent thereafter. The case was returned to the Board the following month. Because less than the maximum available benefit for a schedular rating was awarded and because the increase was not awarded for the entire claims period, the claim remains properly before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Before June 24, 2010, the overall disability picture of the Veteran's service-connected lumbosacral degenerative disc disease reflects that it was manifested by functional loss due to pain that resulted in a limitation of flexion, but not to 60 degrees or less; the Veteran's combined range of thoracolumbar motion was greater than 120 degrees and incapacitating episodes were not shown. 2. Since June 24, 2010, with application of the benefit of the doubt doctrine, the Veteran's service-connected lumbosacral degenerative disc disease has been manifested by functional loss due to pain which approximates a limitation of motion equivalent to that set forth in the rating criteria for a 40 percent rating; incapacitating episodes have not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for lumbosacral degenerative disc disease were not met prior to June 24, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a 40 percent rating, but no more than 40 percent, for lumbosacral degenerative disc disease have been met since June 24, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008)). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's claim of service connection for a low back disability was granted in August 2005. He was also assigned a disability rating and effective date. As the Veteran's current appeal stems from a disagreement with a downstream element, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also October 8, 2008 & January 18, 2007 VCAA Letters (outlining requirements to establish a higher rating for a service connected disability). The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The Board finds that all available evidence pertaining to the Veteran's claim has been obtained. The evidence includes copies of the Veteran's service treatment records (STRs), VA treatment records, VA examination reports, private medical records, and lay statements in support of his claim, to include the Veteran's July 2010 hearing testimony. The Veteran has not indicated that there are outstanding available records for the time period in question that VA should have obtained, and the Board is aware of none. In this regard, the Board notes that in October 2008 the Veteran submitted a compact disc (CD). A note attached to the CD envelope indicates that the disc contains a digital motion x-ray and that the files could not be printed. The Board has reviewed the contents of the CD, which contains a June 2008 private digital motion x-ray showing the Veteran performing spinal movements in all directions. As the CD contains no image or documents files, but rather, only video files, printing is not an option. Notably, the CD contains no x-ray report or summary of clinical findings. In any event, as the digital motion x-ray is private medical evidence and that Veteran has not alleged that clinical findings from that x-ray would support a higher rating, the Board finds that no further assistance is required in this regard. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "the duty to assist is not always a one-way street"). Further, the Veteran has been afforded several examinations in connection with his claim of service connection for a disability and appeal of the disability rating assigned. The VA examiners indicated that the claims folder had been reviewed, to include any previous examination reports and private medical evidence of record, and they took into account the Veteran's subjective complaints associated with his service-connected disability. All appropriate testing was conducted, and the examiners made all findings necessary to apply the rating criteria. Upon review of the examination reports, and in light of the VA treatment records, the Board is satisfied that the record contains sufficient evidence by which to evaluate the Veteran's service-connected low back disability in the context of the rating criteria and throughout the appeal periods. Accordingly, the Board has properly assisted the Veteran by affording him adequate VA examinations. II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The Veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case here, the question for consideration is the propriety of the initial evaluations assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson, supra. Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2012). The Board notes that when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable diagnostic code (DC), any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In that regard, 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. Further, 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. Moreover, 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. As noted in the introduction, the Veteran's service-connected low back disability was initially classified as chronic lumbosacral strain and a noncompensable (zero) percent disability rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, effective August 1, 2005. By rating action dated in April 2007, his disability rating was increased to 10 percent, effective from June 20, 2006. Thereafter, in a February 2008 decision, the Veteran's low back disability was recharacterized as lumbosacral degenerative disc disease and the 10 percent disability rating was assigned under 38 C.F.R. § 4.71a, DC 5243, effective back to August 1, 2005. Subsequent to a remand from the Board, the AMC, via a rating action dated in June 2012, increased the Veteran's disability rating to 20 percent under DC 5243, effective March 19, 2012. The Board notes that the regulations pertaining to evaluation of disabilities of the spine have twice been amended. However, as both of those amendments took effect prior to when the Veteran filed his claim of service connection for a low back disability in March 2005, only the post-September 26, 2003, rating criteria is applicable to determining the proper evaluation for the Veteran's disability. Currently, the rating criteria provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2012). Under the General Rating Formula for spine disabilities, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. 38 C.F.R. § 4.71a, DCs 5235-5243 (2012). A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Lastly, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal thoracolumbar spine forward flexion is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (2); 38 C.F.R. § 4.71a , Plate V (2012). The combined range of motion is the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation and the normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (2). For disabilities rated under 38 C.F.R. § 4.71a, DC 5243, pertaining to intervertebral disc syndrome, a 10 percent evaluation is assigned for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2012). 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. Id. at Note (1). Also under the General Rating Formula for spine disabilities, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (1). A review of the evidence relevant to the determination of the proper evaluation(s) of the Veteran's service-connected low back disability shows that during an April 2005 VA examination, the Veteran reported his functional impairment to be difficulty doing activities, noting low back pain when walking up stairs or inclines. Range-of-motion testing resulted in flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, and rotation to 30 degrees, bilaterally. There was pain associated with straight leg raising on the right at 45 degrees. X-rays taken in July 2005 showed early degenerative changes in the posterior lower lumbar spine. In a September 2005 statement, the Veteran complained of muscle spasms and localized tenderness. He reported daily back pain that increased in severity throughout the day. He stated that he was no longer able to walk around his neighborhood and could not lie flat on his back. VA treatment records dated in November 2005 revealed complaints of low back pain, but a normal range of motion. Straight leg raises were positive at 35 to 40 degrees and there was pain with walking on heels and toes. Left hip rotation led to low back pain. (Similar findings were noted in treatment records dated in February 2006 and August 2006.) The Veteran was afforded another VA examination in January 2006. At that time, the Veteran stated that he had flare-ups of back pain every two to three days, lasting for half a day, characterized by increased pain and a 50 percent decrease in his range of motion. Flare-ups were not accompanied by weakness, shooting pain, incoordination, numbness, or fatigue. The Veteran did, however, indicate occasional radiating pain to his buttock, left more often than right. Incapacitating episodes were denied. Range-of-motion testing resulted in flexion to 95 degrees, with pain at 65 degrees, extension to 25 degrees, with pain at 25 degrees, right and left lateral flexion to 30 degrees, with pain at 30 degrees, and rotation to 30 degrees, bilaterally, with pain at 30 degrees on the left. It appears that repetitive motion produced increased pain. Straight leg raising was negative and strength sensation reflexes were normal in the lower extremities. The examiner recorded an impression of degenerative disc disease of the lumbar spine with no evidence of radiculopathy. Private treatment records dated in June 2006 recorded the Veteran's complaints of low back pain. In a statement dated that same month, the Veteran reported experiencing occasional episodes of sharp pain in his lower back/hip area that would leave him incapacitated for a few seconds. Episodes were brought on by a change in standing position. The Veteran stated that he was then-currently in his third job since leaving active duty, on account of the fact that he needed to take jobs that did not require heavy lifting or a lot of walking. He stated that he also unable to walk long distances or up steep inclines without experiencing back pain. A September 2006 VA physical therapy consultation revealed lumbar spine range of motion within normal limits with a "catch" upon returning from flexion. The Veteran specifically denied radicular symptoms at the time and straight leg raising was negative. Another VA examination was conducted in February 2007. At that time, the Veteran reported daily low back pain, which he rated as a 7 on a scale of 1 to 10. He indicated occasional flare-ups of short duration brought on by bending or lifting. He denied incapacitating episodes of back pain, as well as pain, numbness, and weakness in his legs. Bowel and bladder function were noted to be normal. The examiner indicated no clear evidence of nerve root compromise. Range of motion testing was as follows: flexion 0-80 degrees; extension 0-30 degrees; bilateral flexion 0-30 degrees; bilateral rotation 0-30 degrees; total combined range of motion amounted to 230 degrees. The Veteran exhibited no pain with motion at this time, no additional loss of range of motion due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups, and no change in range of motion with repetitive motion. The clinician also specifically found that the Veteran had not been incapacitated as a result of his low back pain. A March 2007 treatment entry noted that the Veteran had declined to undergo magnetic resonance imaging (MRI) testing at the time, as he had had an MRI two years prior and had not had any significant change in his pain since the time. (The Board notes that the record contains the report of a December 2005 MRI that showed minimal degenerative disc disease and facet arthropathy resulting in minimal bilateral foraminal narrowing at L5-S1.) The March 2007 treatment note also recorded pain of a 3 out of 10 with flexion at 45 degrees. The report of a June 2008 private electromyogram (EMG) showed a high degree of muscle tension at L1, L3, and L5, for which the private clinician provided four possible reasons, to include muscle spasms, relaxed spine muscles, excessive tissue between the measuring electrodes and the muscles, and use of muscle relaxing drugs or a TENS (Transcutaneous Electrical Nerve Stimulation) unit. A VA examination conducted in October 2008 revealed range-of-motion findings as follows: flexion to 70 degrees; extension to zero degrees; right and left lateral flexion to 20 and 10 degrees, respectively; and right and left rotation to 10 and 20 degrees, respectively. Total combined range of motion amounted to 130 degrees. The Veteran reported pain throughout all ranges of motion, with worsening pain at the end range. He reported a "pinching" into the left buttock upon left lateral flexion and right rotation at the end range of motion and discomfort in the same area with rotation. Straight leg raises were negative for any radicular symptoms. The Veteran reported flare-ups of pain brought on by activity and lasting only for the duration of the activity. He denied both incapacitating episodes and radiating neurologic symptoms. The examiner noted no change in active or passive range of motion during repeat testing and there were no additional losses of motion due to pain, weakness, impaired endurance, fatigue, or incoordination. A VA treatment note dated in October 2009 showed strength to be 5/5 in the lower extremities. The Veteran complained of low back pain with flexion and of shooting pain with heel to toe walking. He indicated that his pain had increased over the past several months. A private physical therapy note dated on June 24, 2010, recorded complaints of intermittent numbness, tingling, and hot sensation into left thigh, as well as occasional shooting pain into the buttocks. Range-of-motion testing revealed an average range of thoracolumbar flexion to 23 degrees and extension to 5 degrees, on active motion, and to 34 and 6 degrees, respectively, on passive motion. A VA treatment note dated in February 2011 revealed flexion to 60 degrees, with pain with lateral movement and with bending and squatting. Bilateral hip pain with positive straight leg raises and hip rotation leading to low dull back pain was noted. The Veteran also reported shooting pain into buttocks and lower legs. He stated that his pain was alleviated by sitting for 15 minutes and reported wanting some type of ergonomic chair at work to help relieve his ongoing back pain. A March 2011 spine surgery consultation report showed that the Veteran's gait was without antalgia and that he was able to heel and toe-walk without difficulty. Sensation in the lumbar spine was intact to soft touch from L2 to S1 bilaterally. An MRI of the lumbar spine dated on March 11, 2011, showed unchanged mild degenerative changes of the lumbar spine, predominantly secondary to facet arthropathy with mild left and moderate right neural foraminal narrowing at L5-S1. Otherwise, no severe levels of stenosis were noted. The clinician stated that the Veteran's pathology in the lumbar spine was negligible and could possibly be improved with physical therapy. An April 2011 VA treatment note indicated that from an orthopedic spine perspective, the Veteran was not having any symptoms of sciatica but only back pain and left buttocks pain. No radicular symptoms or paresthesias were noted down either lower extremity. Although there was some moderate stenosis of the right L5-S1 neuroforamen, it was indicated that that was not the cause of his left buttocks symptoms. Multilevels of arthritis, primarily in the facet joints, were present and suggested to be the cause of his back pain. The Veteran was afforded another VA examination in March 2012. At that time, he reported daily bouts of sharp excruciating pain in the small of his lower back, brought on by twisting motions, reaching overhead, or walking on an incline. He denied numbness or tingling in the lower extremities and denied fecal or urinary incontinence. The Veteran stated that he was currently working in an internship position for a program analyst position. He reported flare-ups, but could not estimate the functional impact of those flare-ups. Range-of-motion testing revealed flexion to 75 degrees, with pain beginning at 5 degrees; extension to zero degrees, right lateral flexion to 20 degrees, with pain at 10 degrees; left lateral flexion to 15 degrees, with pain at 10 degrees; right lateral rotation to 20 degrees, with pain beginning at 20 degrees; and left lateral rotation to 20 degrees, with pain beginning at 20 degrees. Upon repetitive testing, the Veteran had flexion to 55 degrees, extension to 5 degrees; right lateral flexion to 20 degrees; left lateral flexion to 15 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 15 degrees. Decreased motion, excess fatigability, and pain on movement were noted to be functional impairments due to repetitive testing. Guarding of movement and/or muscle spasms were not noted. Muscle strength was 5/5, save for left hip flexion that was 4/5, and atrophy was not present. Reflexes were noted and sensation to light touch was normal. Straight leg raising test was negative, bilaterally. Signs or symptoms of radiculopathy were not noted on examination and the examiner found no other neurological abnormalities, such as bowel or bladder problems, related to the Veteran's low-back disability. The examiner indicated intervertebral disc syndrome, but noted that the Veteran had had no incapacitating episodes in the previous 12 months. In the instant case, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, entitlement to a rating of 40 percent, but not higher, for his service-connected lumbosacral degenerative disc disease is established as of June 24, 2010, but not earlier. Notably, the private physical therapy notes dated on that day reveal flexion to less than 30 degrees, which supports a rating of 40 percent. In addition, during the March 2012 VA examination, although the Veteran was able to achieve forward flexion to 75 degrees, he reported the onset of pain at 5 degrees of flexion, which weighs in favor of a 40 percent evaluation with consideration of DeLuca factors. Further supporting the Board's determination is the clinician's notation that the Veteran had functional loss and pain on repetitive use. Overall, therefore, the Board determines that it is at least as likely as not that the Veteran's service connected spine disability satisfies the criteria for a 40 percent evaluation from June 24, 2010. A rating in excess of 40 percent from June 24, 2010 is not warranted, as the evidence does not suggest that the Veteran has ankylosis, as is required for a higher evaluation of 50 percent or 100 percent under the applicable diagnostic code. Moreover, as incapacitating episodes, as defined by regulation, have not been shown at any relevant point, there is no basis to assign a higher rating under the criteria specific to intervertebral disc syndrome. Prior to June 24, 2010, the Board determines that the evidence does not weigh in favor of an evaluation in excess of 10 percent. Indeed, even considering the point at which the Veteran experienced pain in his ranges of motion, the overall disability picture for this time period does not reflect flexion limited to 60 degrees or less nor was his combined range of motion limited to 120 degrees or less. See October 2008 VA Examination Report (combined range of motion amounted to 130 degrees and flexion of 70 degrees, which qualifies the Veteran for a 10 percent evaluation); February 2007 VA Examination Report (combined range of motion amounted to 230 degrees and flexion to 80 degrees, which qualifies the Veteran for a 10 percent rating). The Board notes that while a March 2007 treatment noted indicated flexion with pain limited to 45 degrees, which could weigh in favor of a higher rating, this finding is vastly inconsistent with the evidence dated both immediately prior and subsequent to that time. Thus, it is the Board's determination that the overall disability picture prior to June 24, 2010 weighs in favor of a 10 percent evaluation, but no more. Indeed, the Veteran himself reported at that time that he had had no significant change in his condition since a 2005 MRI, and he was able to achieve flexion to 70 degrees and total spine motion to more than 120 degrees in December 2008. Further, incapacitating episodes have not been shown at any point during the appeal period. The Board has also considered whether separate ratings for any neurological abnormalities are warranted. In this regard, while the Veteran has intermittently complained of radiating and/or sharp pain and straight leg raising has, at times, been positive, the Veteran has also specifically denied radicular symptoms. Most notably, however, no medical provider has affirmatively indicated neurologic involvement, and the January 2006 and March 2012 VA examination reports specifically indicate that the Veteran's sensory functions were normal and that he had no objecting findings of radiculopathy. Further, the Veteran has not endorsed bowel or bladder involvement. As such, the Board finds that the evidence weighs against an award of separate ratings for neurological abnormalities at this time. In finding that an evaluation greater than 10 percent is not warranted for the Veteran's service-connected low back disability prior to June 24, 2010, or greater than 40 percent thereafter, the Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating greater than those assigned herein for the Veteran's low back disability at any point during the pendency of the Veteran's claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). The above determinations are also based upon consideration of applicable rating provisions and Board finds that the level of severity and symptomatology of the Veteran's service-connected low back disability are described by the established criteria found in the rating schedule for that disability. The Board finds that the applicable rating criteria specifically contemplate the level of disability and symptomatology reported, to include decreased motion, flare ups, and pain. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the criteria set forth in the rating criteria for 10 and 40 percent disability ratings describe the Veteran's disability level and symptomatology throughout the pendency of his claim and, therefore, the currently assigned schedular evaluations are adequate. No referral is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2012). Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) is part of an increased rating claim when that issue is raised by the record. The issue is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits." Comer v. Peake, 552 F .3d 1362, 1366 (Fed.Cir.2009). In this case, the Board finds that the issue of entitlement to TDIU has not been raised by the Veteran or the record, as there is no indication that he is unemployable due to her service-connected lumbosacral degenerative disc disease. Specifically, the March 2012 VA examination report noted that the Veteran worked as an intern in Washington, DC and made a specific finding that his service connected back disability did not impact his ability to work. ORDER Entitlement to an initial disability evaluation in excess of 10 percent for service-connected lumbosacral degenerative disc disease prior to June 24, 2010, is denied. Entitlement to an initial disability rating of 40 percent for service-connected lumbosacral degenerative disc disease is granted as of June 24, 2010. ____________________________________________ BARBARA C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs