Citation Nr: 1308293 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 12-12 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left arm disability, to include as secondary to a service-connected cervical spine disability. 2. Entitlement to an increased rating for a thoracolumbar spine disability, rated as 10 percent disabling prior to October 13, 2011, and as 20 percent disabling since October 13, 2011. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to April 1993 and from July 2002 to October 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied service connection for a left arm disability and continued a 10 percent rating for a thoracolumbar spine disability. In his May 2012 substantive appeal (VA Form 9), the Veteran asserted that he was 100 percent unemployable due to his service-connected disabilities, and the RO found that a claim of TDIU had been properly raised as part of the claim for an increased rating for thoracolumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU was subsequently included as part of the Veteran's appeal for increased rating for a thoracolumbar spine disability. The Board notes that in June 2011, the Veteran also submitted a notice of disagreement for the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for the purpose of establishing eligibility to treatment. However, in August 2011, the Veteran withdrew his claim for service connection for the purpose of establishing eligibility to treatment, and therefore, this claim is no longer before the Board. Additionally, a subsequent rating decision in March 2012 granted the claim for service connection for an acquired psychiatric disorder. This grant represents a full grant of the benefit sought on appeal for this issue, and therefore, this issue is not before the Board. A July 2012 supplemental statement of the case increased the disability rating for a thoracolumbar spine disability, from 10 percent to 20 percent, effective October 13, 2011. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In January 2013, the Veteran testified before the Board at a video conference hearing. A transcript of this hearing has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. In a January 2013 communication, the Veteran withdrew his appeal concerning entitlement to a TDIU. 2. Resolving all reasonable doubt in favor of the Veteran, the competent evidence shows that the Veteran's left arm disability is due to his service-connected cervical spine disability. 3. Prior to October 13, 2011, the Veteran's thoracolumbar spine disability was manifested by pain, with forward flexion limited to 80 degrees and combined range of motion limited to 230 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; there are no objective findings of any associated neurological disability and there have been no incapacitating episodes in the past 12 months. 4. Since October 13, 2011, the Veteran's thoracolumbar spine disability has been manifested by pain, with forward flexion limited to 45 degrees, and no evidence of ankylosis of the spine; there are no objective findings of any associated neurological disability and there have been no incapacitating episodes in the past 12 months. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to a TDIU have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The requirements for establishing service connection for a left arm disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2012). 3. The criteria for a rating in excess of 10 percent for a thoracolumbar spine disability have not been met prior to October 13, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 4. The criteria for a rating in excess of 20 percent for a thoracolumbar spine disability have not been met since October 13, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the Board's favorable disposition to grant the claim for service connection for a left arm disability and the Board's disposition to dismiss the claim for a TDIU, the Board finds that no discussion of VCAA compliance is necessary at this time for these issues. Regarding the issue of entitlement to an increased rating for a thoracolumbar spine disability, the notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Veteran was provided VCAA notice in a June 2010 letter. This letter advised the Veteran of what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The letter further advised the Veteran of how effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last readjudicated in July 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA medical records, VA examination reports, hearing testimony, lay testimony from the Veteran's friends and family, and the Veteran's statements. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, providing hearing testimony, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Withdrawal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c) (2012). In a January 2013 written communication, the Veteran stated that he wished to withdraw his pending appeal of entitlement to a TDIU. The Veteran's written statement indicating his intention to withdraw the appeal as to this issue satisfies the requirements for the withdrawal of a substantive appeal. As the Veteran has withdrawn his appeal as to the issue of entitlement to a TDIU, there remain no allegations of errors of fact or law for appellate consideration concerning this issue. The Board therefore has no jurisdiction to review this issue. Accordingly, the issue of entitlement to a TDIU is dismissed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his current left arm radiculopathy is due to his service-connected cervical spine disability. He notes that he has already been service-connected for cervical radiculopathy of the right upper extremity. Service treatment records for both periods of service are negative for any complaints, treatment, or diagnoses of a left arm disability. On separation examination in April 1993, the Veteran made no complaints of a left arm disability, and his upper extremities were found to have no abnormalities. The Board notes that a separation examination is not available for the Veteran's second period of active service, but the available service treatment records are negative for any complaints, treatment, or diagnoses of a left arm disability. VA medical records dated from February 2007 to April 2007 show that the Veteran complained of left arm/hand pain, tingling, and numbness in conjunction with his cervical spine disability. In a June 2008 VA medical report, the Veteran complained of left arm pain. Examination revealed full motor strength in the bilateral upper extremities, normal gait, and negative Tinel's and Phalen's. Reflexes were symmetric and trace. The physician diagnosed the Veteran with a large herniated nucleus pulposus at C5-6, paracentric to the right, and a smaller herniated nucleus pulposus at C6-7. The physician indicated that the Veteran appeared to have C6-7 radiculopathy, greater on the right side than the left side. The recommended plan was to arrange an anterior cervical disckectomy and fusion at C5-6 and possibly at C6-7. The Veteran's wife reported in a February 2011 lay statement, in pertinent part, that the Veteran could not enjoy any of the activities he used to like, such as golfing or bowling, because they made his arms go numb. She also stated that although the Veteran had trained to work in a lot of different fields, he was no longer able to do auto body work because all of the bending and working with power tools all day caused back pain, headaches, and numbness in the arms. On VA examination in August 2011, the Veteran reported that his left arm condition had existed since 2006 and that his condition affected his left shoulder, elbow, and fingers. He complained of constantly occurring tingling, numbness, pain, and weakness of the affected parts, but denied any abnormal sensation, anesthesia, and paralysis. He stated that when he performed any work above his head, his left arm would become weak, and he would have to rest it. He indicated that when working with the left arm in repetitive motions, he would experience tingling, numbness, difficulty in writing, and cramping in the hand. Examination revealed no hand tremor, and neurological examination of the upper extremities was normal. The examiner found that there was no pathology to render a diagnosis of any left arm disability. Subsequently, at an October 2011 VA spine examination, the examiner found no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. However, she conceded the diagnosis of disc protrusion with spinal cord impingement of C5-6 and C6-7 based on the Veteran's prior history and his reported history of a positive MRI. An April 2012 MRI revealed known large C5-6 herniated nucleus pulposus effacing the right ventral cord, pronounced broad-based disc protrusion at C6-7 effacing the dural sac and left exiting nerve root sleeve, and small central to right paracentral disc protrusion at C4-5. In an April 2012 VA medical report, the Veteran complained of bilateral arm and finger numbness as well as axial neck pain that radiated into his shoulders, elbows, and fingers. He reported that he had experienced these symptoms since 2004, but that these symptoms had worsened over the last 6 months. The physician noted that a 2009 EMG had not shown evidence of cervical radiculopathy but had instead revealed bilateral carpal tunnel syndrome. On examination, the Veteran had intact sensation and motor strength, and his reflexes were 2+ and symmetric. An MRI showed degenerative disc disease at C5-6 and C6-7. At C5-6, there was a disc osteophyte complex with causes of severe compression on the right side of the cord, and at C6-7, there was left paracentral compression. The physician diagnosed the Veteran with bilateral upper extremity radiculopathy from C5-6 and C6-7. The Veteran and his wife testified before the Board at a video conference hearing in January 2013. Testimony revealed, in pertinent part, that while the Veteran was undergoing cervical traction for his cervical spine disability in 2006, he began experiencing left arm numbness. The Veteran testified that his left arm symptoms included numbness, shooting pains down his arm, and hand cramping/numbness when he did any work above his head. The Veteran's wife reported that the Veteran's arms would go numb and that he could no longer go bowling or golfing. Regarding service connection for a left arm disability on a direct basis, the Board reiterates that service treatment records are negative for any complaints, treatment, or diagnoses for any left arm disability, and no arthritis was shown to have manifested within one year of the Veteran's discharge from service. Additionally, at no time did any treating provider relate the Veteran's left arm disability to his period of service. With respect to service connection for a left arm disability as secondary to the Veteran's service-connected cervical spine disability, the Board acknowledges that the August 2011 and October 2011 VA examiners essentially found no pathology to render a diagnosis of a left arm disability. However, the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability present at any time since the filing of the claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, a June 2008 VA physician diagnosed the Veteran with C6-7 radiculopathy, greater on the right side than the left side. The diagnosis of bilateral upper extremity radiculopathy from C5-6 and C6-7 was further confirmed by an April 2012 VA physician. An April 2012 MRI of the cervical spine additionally showed known large C5-6 herniated nucleus pulposus effacing the right ventral cord, pronounced broad-based disc protrusion at C6-7 effacing the dural sac and left exiting nerve root sleeve, and small central to right paracentral disc protrusion at C4-5. As the medical evidence of record indicates that the Veteran has left upper extremity radiculopathy that is due to herniated nucleus pulposus at C5-6 and disc protrusion at C6-7, and the Veteran has already been service connected for right upper extremity radiculopathy that is secondary to his service-connected cervical spine disability, the Board resolves all reasonable doubt in favor of the Veteran and finds that he currently has left upper extremity radiculopathy that is due to his service-connected cervical spine disability. In sum, the Board finds that the competent evidence of record shows that the Veteran's left arm disability was related to his service-connected cervical spine disability. Thus, the criteria for secondary service connection for a left arm disability have been met. Therefore, reasonable doubt is resolved in favor of the Veteran, and the Board finds that service connection for a left arm disability is warranted. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (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 in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). The Veteran contends that he is entitled to a higher disability rating for his thoracolumbar spine disability. Such disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, as 10 percent disabling prior to October 13, 2011, and as 20 percent disabling since October 13, 2011. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation requires evidence of 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. A 20 percent evaluation requires evidence of 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. 1. Prior to October 13, 2011 On VA examination in October 2010, the Veteran complained of constant, daily, throbbing lower and mid back pain that was moderate in severity. He reported that his back pain was worsening and that it radiated down his chest wall and legs. He stated that he also experienced fatigue, decreased motion, stiffness, spasm, numbness, paresthesias, and leg or foot weakness. He denied any incapacitating episodes of spine disease or the use of devices/aids. He indicated that he was able to walk more than 0.25 mile but less than 1 mile. Examination revealed that the Veteran had normal spinal posture, head position, and gait, and that there was symmetry of the spine in appearance. There was no evidence of anklyosis or abnormal spinal curvatures. There were also no objective manifestations of spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Range of motion testing of the thoracolumbar spine showed 80 degrees flexion, 30 degrees extension, and 30 degrees lateral flexion and rotation bilaterally. There was no objective evidence of pain on active range of motion. Following repetitive motion, there was no objective evidence of pain, nor were there additional limitations of the spine. An x-ray of the spine revealed degenerative joint disease. Knee jerk, ankle jerk, and plantar reflexes were normal bilaterally. A detailed motor examination of the lower extremities was normal. There was no muscle atrophy, and muscle tone was normal. Lasegue's sign was negative. The examiner noted that the Veteran was employed full-time as a manager and that he had not lost any time from work during the past 12-month period. The Veteran was also able to lift up to 100 pounds at work. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine. She found that the problem associated with the diagnosis was low back pain, which affected the Veteran's sleeping, teeth cleaning, and dishwashing, but did not affect his work at all. In a February 2011 lay statement, the Veteran's wife reported, in pertinent part, that the Veteran had constant back pain whether he was sitting, standing, or sleeping. She stated that the Veteran could no longer golf or bowl because he would experience sharp pain under his shoulder blades. She also indicated that the Veteran had to sleep on his left side because if he slept on his right side, he could feel the herniated disc pain through his chest, and if he slept on his back, his legs would go numb. The Veteran also tossed and turned in bed all night long due to his back pain, was always tired, and could not have intercourse very often. The Veteran's wife indicated that although he had trained in many occupational fields, he could not work in these fields due to the strain on his back. These jobs included being a cable installer, fireman, auto body technician, or welder. Although the Veteran currently worked as a property manager, it was still hard on his back because of all the bending, lifting, and carrying of heavy things. VA medical records dated from March 2011 to April 2011 show that the Veteran received treatment for chronic back pain. In March 2011, the Veteran reported worsening of his diffuse low back pain and indicated that he had some diffuse aching into both his thighs. He denied any numbness or weakness in the lower extremities. Examination of the low back was unremarkable, and the Veteran's gait was noted to be normal. Sensory and motor examination of the bilateral lower extremities was intact. The Veteran's lumbar MRI showed multi-level disc degeneration that was particularly pronounced at L5-S1, where the bulging disc almost contacted the S1 root on the right. However, the physician found no clinical evidence for right S1 radiculopathy. He acknowledged the reports of diffuse aching into both thighs, but explained that there was no nerve pressure in the upper lumbar spine which would correspond to this pain localization. In an August 2011 lay statement, the Veteran's supervisor at work reported that she had supervised the Veteran for 3 years and noticed a significant decline in his ability to perform his duties. She stated that she had been concerned with the Veteran's ability to lift, pull, and push to complete his job responsibilities on a daily basis. She indicated that the Veteran had to take pain medication to make it through the day even though he was required to operate machinery in order to complete tasks. She also reported that the Veteran had rescheduled many projects in order to let his body rest, and that consequently, deadlines had been missed and projects had been left unfinished. The Veteran's supervisor maintained that his physical condition had jeopardized his position within the company. She determined that the Veteran would be unable to perform the duties needed for his position. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's thoracolumbar spine disability is appropriately evaluated as 10 percent disabling for the period under consideration. The objective findings of record do not reflect evidence of forward flexion of the thoracolumbar spine to 60 degrees or less; combined range of motion of the thoracolumbar spine to 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). During this period, the Veteran's forward flexion of the thoracolumbar spine was shown to be 80 degrees, and his combined range of motion was shown to be 230 degrees. The VA examiner noted the range of motion was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance after three repetitions. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 10 percent assigned for this period. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). The Veteran has not alleged that when his back pain occurred, he had to take time off work and be limited to bed rest. Indeed, at his October 2010 VA examination, the Veteran reported that he had not lost any time from work during the past 12 months, and also denied any incapacitating episodes of spine disease during the past 12 months. An "incapacitating episode" for purposes of Diagnostic Code 5243 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. Accordingly, evaluation of his disability pursuant to Diagnostic Code 5243 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board acknowledges that the Veteran reported that he had back pain that radiated down his chest wall and legs, numbness, paresthesias, and leg or foot weakness at his October 2010 VA examination. He also complained of back pain that radiated into both thighs during a March 2011 VA treatment session. However, the evidence shows that neurological examination was normal on both the October 2010 VA examination and at the March 2011 VA treatment session. Specifically, the Veteran's lumbar spine had no sensory or motor deficits, knee jerk and ankle jerk were 2+ bilaterally, all reflexes were normal, and there were no signs of lumbar intervertebral disc syndrome with chronic nerve root involvement. Additionally, although a March 2011 lumbar MRI showed multi-level disc degeneration that was particularly pronounced at L5-S1, the VA physician specifically found no clinical evidence for right S1 radiculopathy and explained that there was no nerve pressure in the upper lumbar spine which would correspond to the pain localization of reported diffuse aching into both the Veteran's thighs. Therefore, the Board finds that the medical evidence of record fails to show that the Veteran's thoracolumbar spine disability was productive of any objective neurological manifestations for the period under consideration sufficient to warrant a separate rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). 2. Since October 13, 2011 On VA examination in October 2011, the Veteran reported that he could only walk 0.25 miles due to his spine disability. He stated that he had not experienced any falls due to his back disability. He complained of constant, severe low back pain that traveled down his legs. He also indicated that he experienced stiffness, fatigue, spasms, decreased motion, paresthesia, numbness, and weakness of the leg. He denied having any bowel or bladder problems or erectile dysfunction. He maintained that during flare-ups, he experienced functional impairment in the form of fatigue, stiffness, and pain. The Veteran also denied having any incapacitating episodes during the past 12 months. He complained that his functional impairments around the house included bending, lifting, moving, cooking, and general cleaning, and that he was impaired with mostly everything at work. Examination revealed that the Veteran's posture and gait were within normal limits. His walking was steady, and he did not require any assistive devices for ambulation. His spine had normal head position with symmetry in appearance, and there was symmetry of spinal motion with normal spinal curves. There was no evidence of radiating pain on movement, muscle spasm, tenderness, guarding of movement, weakness, or ankylosis. Muscle tone and musculature were normal. There was no atrophy present in the limbs. Range of motion of the thoracolumbar spine showed 45 degrees flexion, 10 degrees extension, 15 degrees lateral flexion bilaterally, 20 degrees lateral rotation on the right, and 30 degrees lateral rotation on the left. There was pain on all ranges of motion. Following repetitive use, there was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. An x-ray of the spine showed degenerative arthritis, degenerative disc disease at L5-S1, and Schmorl's nodes at L2 and L3. Although there was positive straight leg raising bilaterally, Lasegue's sign was still found to be negative. Neurological examination of the lumbar spine revealed no sensory deficits or lumbosacral motor weakness. Knee jerk and ankle jerk were 2+ bilaterally, and the lower extremities showed normal cutaneous reflexes. There were also no signs of lumbar intervertebral disc syndrome with chronic nerve root involvement. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. She noted subjective factors of pain and complaints of limited range of motion. Objective factors included x-ray findings of degenerative arthritis changes, limited range of motion on examination, and positive straight leg raising test. VA medical records dated from August 2011 to July 2012 show that the Veteran received intermittent treatment for severe, stabbing back pain. The Veteran complained that his mid back pain was so severe that it caused pain in his chest when eating and swallowing food. He also reported experiencing increased muscle spasms and pain in the bilateral lower extremities down to his feet. In February 2012, the Veteran's neurological examination of his lower extremities indicated that he had negative straight leg raise bilaterally and normal muscle tone and development. Deep tendon reflexes were 2+ bilaterally, and the Veteran had normal Babinski's and position sense. There was negative drop foot. The Veteran and his wife testified before the Board at a video conference hearing in January 2013. Testimony revealed, in pertinent part, that the Veteran was having problems with bending over, sitting, lifting, and pulling. The Veteran testified that he had never had any incapacitating episodes of his back disability. He reported that he experienced muscle spasms in his low back and that he also suffered from shooting pains down his legs and numbness in his toes. He stated that he worked as a rigger and that his duties involved unpacking machines from crates, putting them on dollies, and moving them with cranes. He indicated that his back pain was worse during his working days because he tended to recover on the weekends. He also maintained that he could feel the herniated discs on his back if he lay on his right side and that his legs would go numb if he lay on his stomach or back. He reported that even though he took pain medication before going to bed, he would still wake up three or four times during the night due to back pain. The Veteran's wife testified that the Veteran did not sleep very well due to his back disability and would toss and turn a lot at night. She reported that he took a lot of medication for his back. She also stated that the Veteran did not engage in many activities outside of work and at home. She indicated that he could no longer go for walks, golf, or bowl. She maintained that they had bought a very expensive bed to help the Veteran sleep, but he was still not able to get very much sleep. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's thoracolumbar spine disability is appropriately evaluated as 20 percent disabling for the period under consideration. The objective findings of record do not reflect evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). During this period, the Veteran's forward flexion of the thoracolumbar spine was shown to be 45 degrees, and there was no evidence of any ankylosis of the spine. The VA examiner noted the range of motion was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance after three repetitions. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 20 percent assigned for this period. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). The Veteran has not alleged that when his back pain occurred, he had to take time off work and be limited to bed rest. Indeed, at his October 2011 VA examination and during his January 2013 hearing, the Veteran reported that he had not experienced any incapacitating episodes of spine disease during the past 12 months. An "incapacitating episode" for purposes of Diagnostic Code 5243 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. Accordingly, evaluation of his disability pursuant to Diagnostic Code 5243 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board acknowledges that the Veteran reported that he had pain that traveled down his legs, paresthesia, numbness, and weakness of the leg at his October 2011 VA examination. He also complained of back pain that radiated down the legs during a February 2012 VA treatment session and reported having shooting pains down his legs and numbness in his toes during his January 2013 hearing. However, the evidence shows that neurological examination was normal on both the October 2011 VA examination and at the February 2012 VA treatment session. Specifically, although the Veteran had positive straight leg raising bilaterally on examination in October 2011, indicating the presence of a herniated disc, he had no other neurological abnormalities at the October 2011 VA examination or the February 2012 VA treatment session. Indeed, the Veteran's lumbar spine had no sensory or motor deficits, knee jerk and ankle jerk were 2+ bilaterally, all reflexes were normal, and there were no signs of lumbar intervertebral disc syndrome with chronic nerve root involvement. Therefore, the Board finds that the medical evidence of record fails to show that the Veteran's thoracolumbar spine disability was productive of any objective neurological manifestations for the period under consideration sufficient to warrant a separate rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). 3. Other Considerations The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his thoracolumbar spine disability. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during the relevant periods on appeal. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5242 (2012); see also Fenderson, supra. The Board has also considered whether the Veteran's thoracolumbar spine presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. His 10 percent rating prior to October 13, 2011 contemplates his subjective complaints of pain and minimal functional impairment. Although the Veteran reported stabbing back pain, back pain radiating into the lower extremities, and numbness/weakness in his lower extremities, the only objective manifestation of his back disability during this period under consideration was a limited range of motion of the lumbar spine without pain on motion or additional limitation following repetitive use. There were no neurological manifestations or any other objective manifestations. Indeed, the Veteran was still able to lift 100 pounds at work, and he had not had any incapacitating episodes of his spine disability. The Veteran's subjective complaints of pain were therefore included in the 10 percent rating. Similarly, the Veteran's 20 percent rating since October 13, 2011 contemplates his subjective complaints of pain and functional impairment. Although the Veteran reported severe back pain, back pain radiating into the lower extremities, and numbness/weakness in his lower extremities, the only objective manifestations of his back disability during this period under consideration were arthritis of the spine and a limited range of motion of the lumbar spine with pain on motion but no additional limitation following repetitive use. Despite the indication of a herniated disc from a positive straight leg raise bilaterally, there were no objective neurological manifestations or any other objective manifestations. Indeed, the Veteran did not have any ankylosis, nor did he have any incapacitating episodes of his spine disability. The Veteran's subjective complaints of pain were therefore included in the 20 percent rating, along with his increased limitation of motion. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The appeal concerning the issue of entitlement to a TDIU is dismissed. Entitlement to service connection for left upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, is granted. An increased rating for a thoracolumbar spine disability, rated as 10 percent disabling prior to October 13, 2011, and as 20 percent disabling since October 13, 2011, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs