Citation Nr: 1304187 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-10 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for a thoracolumbar spine condition, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In November 2012, the Veteran was afforded a video-conference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. FINDING OF FACT For the entire appeal period, forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less and there is no favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome (IDS) requiring bedrest prescribed by a physician, or associated neurological impairment. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for thoracolumbar spine condition are not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), so that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, August 2007 and October 2007 letters, sent prior to the initial unfavorable decision issued in September 2008, and a June 2009 letter advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the August 2007 and October 2007 letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the June 2009 letter was issued after the initial September 2008 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the June 2009 letter was issued, the Veteran's claim was readjudicated in the September 2011 statement of the case and the July 2012 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's VA treatment records have been obtained and considered. In this regard, he testified that all of his current treatment for his thoracolumbar spine disability is through the VA. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Board notes that, at the Veteran's hearing, he referenced being seen by a physician on Lynch Road; however, such is referring to a VA-contract physician who performed a February 2010 VA examination for peripheral nerves, which is of record. Additionally, he indicated that he had previously seen Dr. Barnett at St. Lucy's who placed a titanium plate in his neck. It does not appear that such records are contained in the claims file; however, VA treatment records reflect a history of cervical spine surgery in 2004, which pre-dates the current appeal period for the Veteran's thoracolumbar spine condition. Moreover, the issue of the cervical spine disorder is not currently on appeal. Therefore, as such records pertain to the cervical spine and pre-date the current appeal period, the Board finds no prejudice to the Veteran in proceeding with a decision without obtaining such records. In this regard, such records are irrelevant to the instant claim and, thus, there is no duty to obtain them The Veteran was also afforded a VA examination in August 2007, August 2009, and April 2012 with a June 2012 addendum in conjunction with the claim on appeal. Neither the Veteran nor his representative has alleged that such are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected thoracolumbar spine condition as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. Additionally, in November 2012, the Veteran was provided an opportunity to set forth her contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the November 2012 hearing, the Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the Veteran's thoracolumbar spine symptomatology as well as the functional impact such disability has on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. In this regard, he testified that all of his current treatment for his thoracolumbar spine disability is through the VA and, while he referenced records from St. Lucy's, as discussed above, such have been found to be irrelevant to the instant claim and, thus, there is no duty to obtain them. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Legal Criteria/Analysis When there is an approximate balance in the 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); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. The Virtual VA file reveals VA outpatient treatment reports dated through October 2012, and the July 2012 SSOC documents review of such reports dated through June 21, 2012. As the Veteran waived consideration of the "p[a]st six months of VA treatment reports" at the time of the November 2012 hearing before the undersigned, a remand for consideration of any such records not previously considered by the RO in another SSOC pursuant to 38 C.F.R. § 20.1304(c) is not necessary. When describing a document contained in the Virtual VA file and not physically of record in the claims file, this fact will be so noted herein. 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Recently, the 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 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 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, 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. See 38 C.F.R. §§ 4.40, 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. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is 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, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Note (3): 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): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable 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 favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. In the instant case, the Veteran's thoracolumbar spine condition has been evaluated under DC 5237 pertinent to lumbosacral strain. IDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran was treated for back problems during service, and an August 1991 rating decision granted service connection for low back strain at a disability rating of 10 percent. This rating was reduced to a noncompensable evaluation by an October 1992 rating decision. The 10 percent rating was restored effective from the grant of service connection by a February 1994 rating decision. Following a November 1998 VA examination that showed painful and diminished motion in the lumbar spine, an October 1999 rating decision increased the rating for the service connected back disorder, listed therein and thereafter as a "thoracolumbar spine condition," to 20 percent disabling. This 20 percent rating has been confirmed and continued thereafter, to include by way of a March 2000 Board decision that denied a rating in excess of 20 percent for the service connected thoracolumbar spine disorder. The Veteran filed his current claim for an increased rating in March 2007. Turning to some of the more recent pertinent evidence, reports from an August 2007 VA spine examination show the Veteran reporting pain in the mid upper spine between the shoulder blades that radiated to both legs and the head. He described the pain as constant, steady, and sharp with bilateral leg numbness, headaches, and blurred vision. The pain was described as being a 10 on a scale of 0 to 10 and also described flare-ups of pain to 10 on a scale of 0 to 10 with a "100%" decrease in range of motion and functioning during such flare-ups. The Veteran reported no periods of incapacitation during the prior 12 months. Associated features or symptoms were said to include constant malaise, episodic dizziness, constant weakness and numbness in both legs, episodic blurred vision, irritable bowel syndrome, and occasional erectile dysfunction. It was noted that the Veteran tended to stumble frequently and could walk without assistance but could not run or jog. The Veteran reported that he was unable to bend down and that the spine disability affected his ability to accomplish activities of daily living, with the Veteran noting that he could not tie shoes, sit for very long, or wash dishes. With respect to occupational effects, he said he could no longer work as truck driver. Upon physical examination in August 2007, the spine was said to be normal in alignment, symmetry, and curvature. A kyphotic posture was observed but there was normal symmetry and rhythm of spinal motion with no evidence of instability. Lumbar motion was to 80 degrees of flexion with pain at 80 degrees; 20 degrees of extension with pain at 20 degrees; 30 degrees of lateral bending to each side with pain at 30 degrees; and rotation to 45 degrees at each side with pain at 45 degrees. It was noted that there were no increased limitations manifested by weakness, pain, or lack of endurance during repetitive motion. Tenderness and spasms were noted but there were no deformities or scoliosis. Kyphosis was said to exist but be limited to the thoracic spine. Ankylosis was not said to be present and the sensory examination was said to be abnormal with decreased pinprick over the entire left leg and both arms. Muscle mass and strength was normal and there was no evidence of radiculopathy. X-rays of the thoracic spine were normal and the pertinent diagnosis following the examination was limited motion in the lumbar spine but no evidence of radiculopathy. The examiner stated that the Veteran had chronic back pain with a high degree of non-organicity and that obesity was a principal aggravating factor. Reports from an August 2009 VA general medical examination showed the Veteran reporting progressive chronic mid and low back pain since service since service mostly centered in the mid and upper back between his shoulder blades. He described the pain as occurring daily and noted spasms and occasional burning sensations. The pain was described as varying from 6 to 10 on a scale of 0 to 10 and the Veteran noted an increase in symptoms, particularly over the previous year. The pain was said to radiate down both lower extremities all the way to the toes. Diffuse numbness and tingling was noted in the lower extremities in a stocking distribution, and the Veteran described increased fatigability and lack of endurance in his back and lower extremities, especially with standing and walking. He reported that there were times that his lower extremities have "buckled on him" with resulting falls. It was noted that he had been provided with a cane for walking by VA. The Veteran reported malaise but no bowel or bladder symptoms. Thoracic spine x-rays from February 2009 were said to have shown minimal anterior wedging of the lower thoracic vertebrae with slight scoliosis convex to the left as well as spondylosis. Also noted were post-traumatic changes with spondylosis and scoliosis. Upon physical examination in August 2009, the Veteran walked comfortably with an erect posture and no significant ataxia was noted. He used a cane for ambulation. It was noted that there were minimal to mild functional limitations with standing, walking, weight bearing, and propulsion. There was minimal to mild decreased symmetry and rhythm of spinal motion and it was noted the Veteran tended to walk holding his lower and mid back "very" stiffly. No limp was noted and there was an essentially normal symmetry and appearance of the spine with no significant kyphosis or scoliosis evident on gross examination. There was diffuse tenderness in the paraspinal muscles all along the thoracolumbar spine with no significant decreased lumbar lordosis. The bilateral straight leg raising testing showed a positive sign at 20 degrees and a positive bilateral Lasegue's sign was noted. Active range of motion in the thoracolumbar spine showed 45 degrees of forward flexion; 5 degrees of extension; 25 degrees of left and right lateral flexion; and 20 degrees of right and left lateral rotation. Pain was noted throughout all motion. Repetitive flexion and extension caused increased pain with fatigability, weakness, lack of endurance, and increased instability/incoordination. After repetitive motion, flexion was to 40 degrees and extension to 5. Pain with muscular fatigability, weakness, and lack of endurance as well as instability/incoordination were said to be the major impacting factors with repetitive motion according to the examiner. The examiner noted that that there was also "very minimal" decreased motion with forward flexion upon repetitive motion. The neurological examination showed the peripheral nerves in the upper and lower extremities to be essentially normal with 5/5 strength bilaterally. There was no obvious muscular atrophy, wasting, or rigidity noted in the extremities. An essentially normal muscular tone was evident and deep tendon reflexes were 1/4 in the upper and lower extremities. No tremors were noted and point to point and rapid alternating movement was essentially intact. The sensory examination was essentially intact with no obvious sensory deficits. The Veteran not able to perform a heel/toe walk because of back pain and was able to tandem walk with difficulty. The neurological examination was otherwise intact. Following the August 2009 examination, the impression in pertinent part was post traumatic arthropathy of the thoracic spine with spondylosis and scoliosis as well as chronic mid/upper back pain and dysmobility. Also diagnosed was chronic low back strain/pain with chronic bilateral lower extremity sciatica and dysmobility. The examiner noted that the service connected thoracolumbar disability "seems to exert moderate effects upon [the] [V]eteran's ability to engage in physical type employment and mild effects upon [the] [V]eteran's ability to engage in sedentary type employment." At the most recent VA examination of the spine conducted in April 2012, the Veteran described flareups of thoracolumbar spine pain precipitated by standing, walking, and climbing stairs. Range of motion testing of the thoracolumbar spine showed 90 degrees (or greater) of flexion, and 30 degrees (or greater) of extension, left and right flexion, and left and right lateral rotation. There was objective evidence of pain at the extremes of all motion. Repetitive motion testing did not reveal any additional limitation of motion and there was said to be no functional loss and/or functional impairment due to the thoracolumbar spine disability (although it was noted that there was pain on movement.) There was no localized tenderness or pain to palpation and no guarding or muscles spasm associated with the spine. There was also no loss of muscle strength or muscle atrophy, and the deep tendon reflexes and sensory examination were normal. The straight leg raising test was positive and the Veteran reported mild (usually dull) pain in the lower extremities. There were no other signs or symptoms of radiculopathy, and it was indicated that the severity of the Veterans radiculopathy (which was said to involve both sciatic nerve roots) was mild. It was noted that the Veteran did not have any other neurological abnormalities such as bowel or bladder problems or IDS. It was also noted that the Veteran ambulated with a cane. X-rays were said to have demonstrated mild endplate degenerative changes and disc space narrowing in the lumbar spine and slight persistent anterior wedging, endplate sclerosis, and levorotoscoliosis in the thoracic spine. The examiner noted that the Veteran's service connected spine disability did not impact his ability to work and that he was able to secure and maintain sedentary employment. The Virtual File contains a June 2012 addendum noting that electrodiagnostic testing scheduled in conjunction with the April 2012 examination showed no evidence of lumbosacral radiculopathy or peripheral neuropathy affecting the bilateral lower extremities. These records also reflect continuing evaluations of the Veteran's spine on an outpatient basis in 2012, with such records dated in August 2012 noting mild tenderness to palpation of the paravertebral muscles of the spine with a normal straight leg raising test, a normal range of motion, and normal deep tendon reflexes of the lower extremities. These reports also noted that the Veteran ambulated with a cane and the assessment was degenerative disc disease/degenerative joint disease. As set forth in the criteria listed above, a rating in excess of 20 percent for the service connected thoracolumbar spine disability would require forward flexion of the thoracolumbar spine to be 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IDS, or neurological impairments warranting separate compensable ratings. Such findings are simply not demonstrated by the findings from the August 2007, August 2009, and April 2012 VA examinations or upon review of any other evidence of record. In this regard, these clinical reports reflect forward flexion of the thoracolumbar spine that was well beyond 30 degrees (at worst, 45 degrees at the August 2009 VA examination), and no ankylosis was demonstrated by these reports, nor is it contended that the service-connected spine disability includes ankylosis. With respect to an increased rating for incapacitating episodes of IDS, while the Veteran testified to the undersigned as to episodes of bed rest due to his spine disability, the April 2012 VA examination specifically noted that the Veteran does not have IDS, and there is otherwise no clinical evidence that the service-connected disability includes IDS. Moreover, there is no evidence that the Veteran has experienced incapacitating episodes that necessitated bedrest prescribed by a physician. In this regard, while the Veteran testified to having incapacitating episodes that required bedrest at his November 2012 hearing, there is no evidence that such was prescribed by a physician. With respect to potential increased compensation on the basis of any associated objective neurologic abnormalities, the Board has considered the complaints of "shooting pain" and numbness, bladder and bowel problems, and erectile dysfunction presented to the undersigned at the November 2012 hearing, as well as similar complaints contained in the clinical records set forth above. In this regard, a June 2010 rating decision, citing to the conclusion of a VA examiner following a February 2010 VA examination, denied service connection for bilateral radiculopathy of the lower extremities, finding such disability to be attributed to cervical spine disability, for which service connection was denied by the September 2008 rating decision. Moreover, while there has been some question as to the presence of lower extremity radiculopathy as a result of the Veteran's service-connected thoracolumbar spine disability, the Board notes that the competent evidence fails to objectively identify such impairment. Specifically, the motor examination at the February 2010 VA examination showed normal functioning in the left lower extremity and findings in the right lower extremity were limited to weakness at the hip flexor. Also supporting this determination are the facts that sensory functioning in both lower extremities at the February 2010 examination was normal, the Veteran's radiculopathy was described as only mild at the April 2012 VA examination, and the electrodiagnostic testing referenced in the June 2012 addendum showed no evidence of lumbosacral radiculopathy or peripheral neuropathy affecting the bilateral lower extremities. Furthermore, while the Veteran has competently and credibly testified to radiating pain, such is explicitly contemplated in the General Rating Criteria pertaining to the evaluation of his service-connected thoracolumbar spine condition. There is otherwise no clinical evidence demonstrating that the criteria for a rating in excess of 20 percent for the service-connected spine disability are met. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, supra, the reports from the VA examinations conducted above document consideration of these principles, and there is no indication that increased compensation would be warranted under these principles. The Board has carefully considered the Veteran's contentions and testimony to the undersigned with respect to the nature of his service-connected thoracolumbar spine disability and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and is contemplated by the 20 percent disability rating assigned for the service-connected spine disability. However, with respect to the range of motion testing and electrodiagnostic testing, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the Veteran's thoracolumbar spine disability as such is accomplished by the administration and interpretation of specialized testing. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the thoracolumbar pathology. Moreover, while the Veteran testified to the undersigned as to radiating pain and numbness, bowel and bladder problems, as well as erectile dysfunction, the Board finds the specific clinical finding at the April 2012 VA examination that there were no such problems associated with the service-connected thoracolumbar disability to be competent evidence of whether such symptomatology is demonstrated. In this regard, the examiner possesses the requisite medical knowledge to offer an opinion with respect to whether the Veteran's spine disorder results in neurological impairment. In this regard, such involves that administration and interpretation of electrodiagnostic testing. In contrast, the Veteran is not competent to offer an opinion as to whether his complaints involving radiating pain and numbness, bowel and bladder problems, and erectile dysfunction are related to his thoracolumbar spine condition as such involves an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). With respect to his testimony to the undersigned attributing a cervical spine disability and depression to the service-connected lumbosacral spine disability, as indicated, service connection for cervical spine disability was denied by the September 2008 rating decision, and this decision also denied service connection for psychiatric disability. As the Veteran's appeal to the Board did not include disagreement with respect to these issues, that portion of the September 2008 rating decision that denied service connection for these issues is final and may only be reopened if the Veteran submits new and material evidence. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant'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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected thoracolumbar spine disability with the established criteria found in the rating schedule. The Board finds that the spine disability at issue is fully addressed by the rating criteria under which such disability is rated. In this regard, the 20 percent rating assigned herein contemplates the functional loss resulting from the service connection spine disability, in particular limitation of lumbar motion (particularly limitation of flexion), to include in consideration of pain and other symptoms resulting in limitation of motion, and kyphosis (shown upon VA examination in August 2007 but not thereafter). There are no additional symptoms of his service-connected thoracolumbar spine disability that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his service-connected spine disorder. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, a claim for TDIU was considered and denied by the RO in a September 2009 rating decision to which the Veteran did not perfect a timely appeal. This fact notwithstanding, while the Veteran testified to the undersigned that his service-connected spine disability precluded his prior job as a mail carrier, he was currently working in a position that involved sorting the mail. The record does not otherwise indicate that the service-connected spine disability precludes all employment, as the conclusion following the August 2009 VA examination was that such disability only resulted in moderate effects upon the Veteran's ability to engage in physical labor and mild effects upon his ability to engage in sedentary type employment, and it was specifically concluded after the April 2012 VA examination that such disability did not impact the Veteran's ability to work and that he was able to secure and maintain sedentary employment. As such, a claim for a TDIU need not be further addressed. In sum, Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his service-connected thoracolumbar spine disability; as such, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 20 percent for a thoracolumbar spine disability is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs