Citation Nr: 1307480 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-24 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating for degenerative disc and facet disease of the lumbar spine in excess of 20 percent prior to December 28, 2010 and in excess of 40 percent thereafter. REPRESENTATION Veteran Represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2008, the RO continued the 20 percent evaluation, effective March 1, 2002, for the service-connected lumbar spine disability, and in January 2009 the RO specified that 10 percent of the assigned 20 percent evaluation was assigned for loss of motion due to pain. In July 2009, the Veteran submitted a substantive appeal, via a VA Form 9, and requested a personal hearing before the Board at the RO. In August 2009, the Veteran submitted a written request to withdraw his Board hearing request. The Board finds that there is no hearing request pending at this time. 38 C.F.R. § 20.702(d) (2012). In July 2011 and March 2012 decisions, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. In a May 2012 rating decision, the RO increased the 20 percent disability rating for the service-connected lumbar spine disability 40 percent disabling, effective December 28, 2010. The Veteran was advised of the May 2012 rating decision but did not express agreement with the decision or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the 20 percent rating, in effect from March 1, 2002 to December 27, 2010, and the 40 percent disability rating in effect as of December 28, 2010, are not the maximum benefits available for the claim on appeal, this appeal continues for the specified rating periods. In a May 2012 rating decision, the RO granted a total disability rating based on individual unemployability (TDIU) due to the service-connected lumbar spine disability, effective December 28, 2010. The Board notes that claim for an increased evaluation for the service-connected lumbar spine disability in excess of 40 percent as of December 28, 2010 remains valid. See Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (discussing VA's "well-established" duty to maximize a claimant's benefits). FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. Prior to December 28, 2010, the service-connected lumbar spine disability was not manifested by forward flexion of the lumbar spine to 30 degrees or less, favorable or unfavorable ankylosis of the entire lumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period. 3. As of December 28, 2010, the service-connected lumbar spine disability has not been manifested by unfavorable ankylosis of the entire lumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. CONCLUSION OF LAW The criteria for an increased evaluation for the service-connected lumbar spine disability in excess of 20 percent prior to December 28, 2010 and in excess of 40 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a July 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for an increased evaluation for the service-connected lumbar spine disability, the evidence must show that such disability has gotten worse. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the July 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes VA outpatient treatment records, private treatment records, private medical statements, Social Security Administration (SSA) decision letter, statements by the Veteran, two buddy statements, and VA examination reports dated November 2008, December 2010, and August 2011. The VA examiners recorded pertinent examination findings thus these reports are probative with regard to the severity and impairment of the service-connected lumbar spine disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Pursuant to the Board's July 2011 remand instructions, the RO secured for the record copies of the Veteran's VA outpatient treatment records from July 2005 to July 2011 and from February 2008 to January 2012. In July 2011, the RO sent the Veteran and his representative a notice letter requesting the Veteran complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for outstanding treatment records from the Acute and Chronic Pain and Spine Center. As of this date, no response to that request has been received. Lastly, the RO arranged for a VA examination in August 2011. That examination report reflects the examiner considered the evidence of record and the reported history of the Veteran and conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter. Hence, the Board concludes that the August 2011 VA examination was adequate and substantially complied with the July 2011 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). Pursuant to the Board's March 2012 remand instructions, the RO reviewed all of the evidence of record and readjudicated the claim on appeal in the May 2012 rating decision and May 2012 supplemental statement of the case (SSOC). The Board concludes that the May 2012 rating decision and SSOC were adequate and substantially complied with the March 2012 remand instructions. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2012); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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 on appeal. Analysis of an Increased Rating for Service-Connected Lumbar Spine Disability In a September 2010 statement, the Veteran reported that his service-connected lumbar spine disability is more severe than the current 20 percent rating indicates. Additionally, the Veteran did not express agreement with the May 2012 rating decision that increased the 20 percent evaluation to 40 percent, effective as of December 28, 2010. Thus, the Veteran essentially contends that increased ratings for the service-connected lumbar spine disability are warranted in excess of 20 percent prior to December 28, 2010 and in excess of 40 percent thereafter. Pursuant to the rating criteria for the spine, the service-connected lumbar spine disability has been rated 20 percent disabling from March 1, 2002 to December 27, 2010 under previous Diagnostic Code 5293 for pain and limitation of motion. See 38 C.F.R. § 4.71a (prior to September 2003). The Board notes that revised provisions for evaluating the spine were enacted on September 26, 2003 and these provisions are only applicable to claims received on or after that date. Since the Veteran filed the current increased rating claim for the service-connected lumbar spine disability in May 2008, these revisions apply to the present case and the claim will be considered under the criteria effective as of the date of claim. The service-connected lumbar spine disability has also been rated 40 percent disabling as of December 28, 2010 under Diagnostic Code 5293-5243 for limitation of motion. See 38 C.F.R. § 4.71a (2012). Regarding claims filed after September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The rating criteria, in pertinent part, provide a 20 percent rating 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffens, or aching in the area of the spine affected by residuals of injury or disease). Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Note (2). The claims for Intervertebral Disc Syndrome rated under Diagnostic Code 5243 are evaluated under either 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the rating criteria, in pertinent part, provides a 20 percent rating when the evidence shows incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is provided when the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating, the maximum available, is warranted when the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. A. Rating Prior to December 28, 2010 After a full review of the record, including the present level of disability and current lay and medical findings one year prior to the current May 2008 increased rating claim to December 27, 2010, the Board concludes that an increased evaluation in excess of 20 percent for the service-connected lumbar spine disability is not warranted under Diagnostic Code 5243 prior to December 28, 2010. Additionally, the assignment of separate ratings for separate periods of time is not warranted. First, the evidence of record during the appeal period does not indicate the service-connected disability manifested forward flexion of the thoracolumbar spine to 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. At the November 2008 VA examination, the Veteran's limitation on walking was the ability to walk more than a quarter mile but less than a mile. Upon physical examination, he displayed a normal antalgic gait, lumbar flattening, and flexion of the lumbar spine upon active and passive range of motion from 0 degrees to 70 degrees with pain. There was loss of motion on repetitive use from 0 degrees to 60 degrees due to pain, and the VA examiner noted no findings of thoracolumbar spine or cervical spine ankylosis. An April 2009 private examination of the thoracic and lumbar spine shows that the Veteran's gait was non-antalgic and forward flexion was 6+. At a March 2010 VA outpatient treatment session, the Veteran displayed full range of motion for the back with pain in all planes. VA outpatient treatment records during the appeal period documented the Veteran as ambulatory. Secondly, the evidence of record during the appeal period does not show the service-connected lumbar spine disability manifested in any incapacitating episodes for at least 4 weeks but less than 6 weeks during a 12-month period. In fact, the November 2008 VA examiner documented no flare ups of spinal conditions, and the evidence of record during the appeal period does not show the Veteran had incapacitating episodes due to the service-connected disability that required prescribed bed rest and treatment by a physician. The Board acknowledges the Veteran's reported history of symptomatology regarding the service-connected lumbar spine disability and that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Specifically, at the April 2009 private examination, the Veteran's chief complaint was that his back hurt a lot and he could not get up when he is down. The private physician also indicated the following characteristics of the Veteran's reported pain: annoying, sore, stabbing, heavy, shard, tingling, pins, pulling, and pressure. The Veteran informed the November 2008 VA examiner that he cannot bend over, pick up stuff, or pull, tug, drive, sit, or stand for prolonged periods of time. He also reported difficulty getting off the floor and getting out of bed. In a December 2010 statement, the Veteran reported he has a hard time moving around, bending, scooping, pulling, lifting, sitting, and sleeping. VA outpatient treatment records during the appeal period further documented the Veteran's complaints of chronic low back pain. In a January 2009 rating decision, the RO specified that the Veteran's assigned 20 percent disability rating, effective March 1, 2002, for the service-connected lumbar spine disability consisted of 10 percent for pain because there was loss of motion on repetitive use due to pain and 10 percent for limitation of motion. Therefore, the Board finds the Veteran's complaints and objective findings of pain are contemplated in the currently assigned 20 percent rating and an evaluation in excess of 20 percent for the service-connected lumbar spine disability is not warranted based on application of 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 205. The Board also acknowledges the reported physical observations of the Veteran's lumbar spine symptomatology. In a September 2008 buddy statement, S. C. reported she witnessed the Veteran has problems bending over to tie his shoes, standing up from a seated position, and having an inability to perform any type of labor or physical activity. Additionally, A. A. reported in a December 2010 buddy statement that throughout her years of knowing the Veteran, he has always had problems with the back, to include lifting, working certain jobs, and having pain throughout the day. The Veteran also reportedly informed A.A. that he does not sleep well at night because of his back. Fully considering the lay and medical evidence regarding the service-connected lumbar spine disability, the reported symptomatology noted above suggests some degree of limited range of motion, but does not show forward flexion of the thoracolumbar spine to 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period. The 20 percent disability rating currently assigned recognizes some limitation of motion of the thoracolumbar spine, pain, and intervertebral disc syndrome consistent with such a rating under Diagnostic Code 5243 during the appeal period. Thus, a preponderance of the evidence is against an increased evaluation in excess of 20 percent for the service-connected lumbar spine disability prior to December 28, 2010. 38 C.F.R. §§ 4.3, 4.7. B. As of December 28, 2010 After a full review of the record, including the present level of disability and current lay and medical findings as of December 28, 2010, the Board concludes that an increased evaluation in excess of 40 percent for the service-connected lumbar spine disability is not warranted under Diagnostic Code 5243 as of December 28, 2010. Additionally, the assignment of separate ratings for separate periods of time is not warranted. First, the evidence of record during the appeal period does not indicate the service-connected lumbar spine disability has been manifested by unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. At the December 2010 VA general medical examination, in connection with the claim for TDIU, the Veteran's gait was slightly antalgic with use of one cane and there were no findings of spinal ankylosis. At the August 2011 VA examination, the Veteran's limitation on walking remained at the ability to walk more than a quarter mile but less than a mile. A history of unsteadiness, constant pain, and use of a cane were also noted. Upon physical examination, the Veteran exhibited pain with motion and lumbar flattening, and the examiner documented no objective findings of thoracolumbar spine or cervical spine ankylosis. VA outpatient treatment records indicate the Veteran has been ambulatory during this appeal period. Secondly, the evidence of record during the appeal period does not show the service-connected lumbar spine disability has been manifested by any incapacitating episodes for at least 6 weeks during a 12-month period. The December 2010 VA examiner noted yes for flare ups of spinal disease with a usual frequency on a weekly basis for a usual duration of one to two days. The Veteran explained that during a flare up he cannot do hardly anything, to include getting up, sitting down, lifting, pulling, or tugging. At the August 2011 VA examination, the Veteran reported having severe weekly flare ups of the lower back which last from less than one day to a full day. During a flare up, he reportedly cannot lift, bend over, sit down, or get in a comfortable position because he is constantly moving up and down. The evidence of record during the appeal period does not show the Veteran has had incapacitating episodes due to the service-connected lumbar spine disability that requires prescribed bed rest and treatment by a physician. Again, the Board acknowledges the Veteran's reported history of symptomatology regarding the service-connected lumbar spine disability, to include pain, as discussed above during this appeal period, and that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno, 6 Vet. App. at 470. However, an evaluation in excess of the currently assigned 40 percent rating is not warranted in this case as the service-connected lumbar spine disability does not exhibit functional loss, to the severity of ankylosis, due to pain on movement. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 205. Although the December 2010 VA examiner did not report any objective findings of pain on active motion or after at least three repetitions of range of motion, the August 2011 VA examiner documented objective findings of pain following repetitive motion, but there were no additional limitations after three repetitions of range of motion. Fully considering the lay and medical evidence regarding the service-connected lumbar spine disability, the reported symptomatology noted above suggests some degree of limited range of motion but does not show unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine nor incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. The 40 percent disability rating currently assigned recognizes some limitation of motion of the thoracolumbar spine and intervertebral disc syndrome consistent with such a rating under Diagnostic Code 5243 during the appeal period. Thus, a preponderance of the evidence is against an increased evaluation in excess of 40 percent for the service-connected lumbar spine disability as of December 28, 2010. 38 C.F.R. §§ 4.3, 4.7. Additional Considerations A separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). In this case, the Board acknowledges that the April 2009 private examination report indicates the Veteran characterized his pain, to include as tingling and pins, and a March 2011 VA outpatient treatment record noted the Veteran "walks with difficulty and has radic[ular] pain from back which prob[ably] restricts his mobility." Moreover, at the November 2008, December 2010, and August 2011 VA examinations, results from Lasegue's sign (straight leg raise) testing were positive and hypoactive reflex examination findings in the lower extremities were noted. However, at the November 2008 VA examination, no objective findings of bowel or bladder impairment were noted and sensory examination of the bilateral upper and lower extremities revealed normal results. The April 2009 private physician documented that neurological examination revealed the Veteran's gait is non-antalgic nor broad base, the Veteran is able to heel-and-toe walk normally, and no abnormalities were noted. At the December 2010 VA examination, no objective findings of bowel or bladder impairment were noted, review of the neurologic system revealed normal results, no gross abnormalities were documented due to results of motor, sensory, and reflex examination as indicated per the abnormal spinal condition, and examination of the Veteran's four extremitates, including peripheral pulses, were normal. Most recently, the August 2011 VA examiner noted no objective findings of bowel or bladder impairment and summary of sensory examination findings of the bilateral upper and lower extremities revealed no affected nerves and normal results. Following the clinical findings and considering the Veteran's reported symptomatology, as discussed above, the November 2008, December 2010, and August 2011 VA examiners did not diagnose the Veteran with a neurological impairment. As a result, the Board finds that the weight of the lay and medical evidence of record during both periods on appeal does not demonstrate objective neurological impairment associated with the service-connected lumbar spine disability, and a separate evaluation is not warranted. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an evaluation higher than the 20 percent and 40 percent disability ratings currently assigned for the specified appeal periods. Lastly, an extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected lumbar spine disability symptoms, to include limitation of motion, loss of motion due to pain, difficulty moving, unsteadiness, and trouble sleeping. A rating in excess of the 20 percent and 40 percent evaluations currently assigned provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflect that those manifestations are not present in this case. The currently assigned 20 percent rating prior to December 28, 2010 contemplates the Veteran's complaints and objective findings of pain, and there were no findings of additional functional loss due to pain to warrant an evaluation in excess of the currently assigned 40 percent rating as of December 28, 2010. See 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 205. Prior to December 28, 2010 and under Diagnostic Code 5243, the competent and more probative evidence of record does not show the service-connected disability was manifested by forward of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire lumbar spine for a higher 40 percent rating; unfavorable ankylosis of the entire lumbar spine for a higher 50 percent rating; or unfavorable ankylosis of the entire spine for a 100 percent rating. The evidence also does not show, pursuant to 38 C.F.R. § 4.71a, manifestations of incapacitating episodes having a total duration of at least 3 weeks but less than 6 weeks during a 12-month period for a higher 40 percent rating or of at least 6 weeks during a 12-month period for a higher 60 percent rating. As of December 28, 2010 and under Diagnostic Code 5243, the competent and more probative evidence of record does not demonstrate the service-connected disability has not been manifested by unfavorable ankylosis of the entire lumbar spine for a higher 50 percent rating or unfavorable ankylosis of the entire spine for a 100 percent rating. The evidence also does not show, pursuant to 38 C.F.R. § 4.71a, manifestations of incapacitating episodes having a total duration of at least 6 weeks during a 12-month period for a higher 60 percent rating. Additionally, the Veteran has been granted service connection for insomnia secondary to the service-connected lumbar spine disability, and there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected lumbar spine disability on appeal is not required. (CONTINUED ON NEXT PAGE) ORDER An increased disability rating for degenerative disc and facet disease of the lumbar spine in excess of 20 percent prior to December 28, 2010 and in excess of 40 percent thereafter is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs