Citation Nr: 1312261 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 09-16 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for chronic lumbosacral strain with degenerative disc disease (DDD) in excess of 20 percent prior to May 11, 2010. 2. Entitlement to an increased disability rating for chronic lumbosacral strain with DDD in excess of 40 percent from May 11, 2010. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to December 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which continued a 20 percent disability rating for the Veteran's service-connected chronic lumbosacral strain with DDD. Subsequently, in a June 2010 rating decision, the RO increased the Veteran's disability rating for chronic lumbosacral strain with DDD to 40 percent, effective May 11, 2010. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in January 2012. A transcript of this hearing was prepared and incorporated into the evidence of record. The appeal was Remanded by the Board in August 2012 and is now ready for further disposition. As noted in the August 2012 Remand, the Board phrased the issues involving increased ratings for the Veteran's service-connected chronic lumbosacral strain with DDD as entitlement to evaluations in excess of those currently assigned. At the Travel Board Hearing, the Veteran phrased the issue as entitlement to an effective date earlier than May 11, 2010, for the grant of a 40 percent disability rating for chronic lumbosacral strain with DDD. The phrasing used on the title page does not change the analysis or the outcome of the issue regarding an increased rating for chronic lumbosacral strain with DDD prior to May 11, 2010. Accordingly, there is no prejudice to the Veteran in phrasing the issue as a claim for an increased rating. The Board acknowledges that in a July 2010 statement, the Veteran's former representative noted that the Veteran filed his claim for an increased rating for his lumbar spine disability in January 2007 and requested that the 40 percent disability rating be effective as of that date. An increased rating is granted herein for the period prior to May 11, 2010 and the RO will implement the change following this decision. If the Veteran disagrees with the effective date assigned by the RO, he may file a notice of disagreement following the implementation of the increase. The Board notes that VA outpatient treatment records are located in Virtual VA. Instead of paper, Virtual VA is a highly secured electronic repository is used to store and review every document involved in the claims process. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Affording the Veteran the full benefit of the doubt, the Board finds that his disability picture prior to May 11, 2010, was of the same severity as his disability picture during the period from May 11, 2010, which included limitation of flexion to 25 degrees. 2. The evidence does not indicate a finding of ankylosis of the entire thoracolumbar spine during any period on appeal. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 40 percent, but no higher, for a chronic lumbosacral strain with DDD, for the period prior to May 11, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for an evaluation in excess of 40 percent for a chronic lumbosacral strain with DDD, for the period from May 11, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in December 2007 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The letter also notified him of how VA determines disability ratings and effective dates if service connection is awarded. The letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in February 2008. In February 2009, he was also informed of the specific requirements for a higher rating under the General Rating Formula for Disease and Injuries of the Spine. Nothing more was required. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In compliance with its duty to assist, the RO associated the Veteran's service treatment records, VA outpatient treatment records, and private treatment records with the claims file. Notably, additional VA outpatient treatment records were obtained in compliance with the August 2012 Remand. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Additionally, the Veteran was afforded VA examinations in January 2008, May 2010, and September 2012. The Veteran contends that the January 2008 VA examination was inadequate because he was under the influence of pain medication at the time of the examination. He has offered sworn testimony that the May 2010 VA examination was the first evaluation of his actual disability picture. He testified that his disability was the same in 2008 as it was at the May 2010 VA examination. The Board finds the Veteran's statements to be credible, particularly in light of the fact that subjective complaints contained his statements in support of his claim as well as reports to medical providers, have been the same since he filed his claim for an increased rating in August 2007. The Board finds that the Veteran's statements regarding the January 2008 VA examination to be akin to statements that the examination was not conducted during a flare-up. When a claimant's medical history indicates that a veteran's condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence in order to provide a proper disability rating. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In Ardison, the Court found that an examination during the remission phase of the condition did not "accurately reflect the elements of the present disability." Id. Thus, the Board finds that the January 2008 VA examination was only adequate as to the Veteran's complaints and X-ray reports and is inadequate with regard to objective observations and range of motion findings. The Board finds that the May 2010 and September 2012 VA examination reports are adequate as the examiners reviewed the claims file and the associated private treatment records. Further, both examiners conducted a thorough interview with the Veteran regarding his symptoms as well as the appropriate tests. Next, the Veteran was afforded the opportunity to testify before the Board in January 2012. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2011) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (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 hearing, the undersigned essentially elicited testimony necessary to determine the nature of the Veteran's disability. Specifically, the undersigned explained the rating criteria for evaluating a lumbar spine disability. Board Transcript (T) page 6. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. T. page 7. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) and has not identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. 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 can adjudicate the claims based on the current record. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). No additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Ratings The Veteran's lumbar strain with DDD is currently rated as 20 percent disabling for the period prior to May 11, 2010 and 40 percent disabling from May 11, 2010. He was initially granted service connection in February 1993 and his disability was rated as 20 percent disabling, under diagnostic codes in effect prior to September 2003. Since September 2003, lumbar spine disabilities are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine discussed below. The Veteran contends that when he filed his claim for increase in 2007, his disability was of the same severity that it was when he was examined in May 2010, which supported an increase to 40 percent disabling. The Veteran also contends that his lumbar spine disability should be rated higher than 40 percent disabling. For the reasons explained below, the Board agrees that the Veteran's disability should be rated as 40 percent disabling for both periods on appeal; however, a disability rating in excess of 40 percent is not warranted. a. Applicable Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assigned if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 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 evaluation would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. b. Factual Background The Veteran filed a claim for an increased rating for his lumbar spine disability in August 2007. The Board has reviewed the VA outpatient treatment records, private treatment records, lay statements and VA examination reports. Some of the lay statements and private treatment records were related to other issues not currently on appeal. The private treatment records regarding the lumbar spine were dated prior to the year before the claim was filed in August 2007. Although the present severity of the lumbar spine disability is most relevant, the Board notes that a private January 2004 magnetic resonance imaging report noted an impression of spondylosis and bulging at L4-5 and L5-S1. The remaining, relevant records are as follows. A January 2007 VA outpatient treatment record noted the Veteran's complaints of right-sided lower back pain, occasional locking during flexion, and radicular symptoms into the right buttock. The VA physician noted right sacroiliac joint tenderness on palpation and mild paraspinous muscle spasm. At the January 2008 VA examination, the Veteran claimed symptoms of throbbing mid and low back pain that radiated to the buttocks. He also reported an inability to lift more than 10 pounds without severe pain. He also reported that he was unable to do prolonged standing or walking and that flare-ups during the cold season averaged 1 to 2 times per week. As noted above, the objective findings have been deemed inadequate as the examination was conducted while the Veteran was influenced by pain-relieving medication. In other words, the examination was not conducted during a flare-up and the objective findings did not adequately reflect the Veteran's disability picture. In the September 2008 notice of disagreement, the Veteran reported that he is unable to drive or ride in a car for more than one hour at a time and that his condition had been like that for three years. He reported that he took medication to sleep and alleviate pain at night. He reported that he wore a back brace to help with stability on bad days. He also reported that he has a special chair that he expects to use for the rest of his life. The chair allows him to recline to almost completely flat. He reported that it was not possible for him to have a bowel movement without pain in his lower back when he strains. He reported that he could not stand up straight. He reported that one time he tried to pop his back into place and stood straight in an attempt to fix his back and passed out from the pain. He reported that after he passed out, he stayed in bed for three days and took painkillers to ease the pain. He reported that his vertebrae are stiff and rub together frequently, keeping him from standing straight or moving around. A May 2010 VA X-ray noted an impression of narrowing of the disc space between L4 and L5 due to degenerative disc disease. In May 2010, the Veteran underwent another VA examination. At that time, he reported constant, sharp, low back pain with some radiation to the left hip. He reported flare-ups two to three times per week, which last most of the day. He reported that standing causes increased pain. He reported that he could walk 30-40 yards. He reported that he sometimes required assistance putting on his shoes but otherwise performed activities of daily living. He reported that he used a back brace and a TENS unit. He reported that he had no bowel or bladder dysfunction but that he did have erectile dysfunction. He reported that he had not had any incapacitating episodes in the previous 12 months. He also reported that he was a diabetic and took medication for diabetic neuropathy. On physical examination, the May 2010 VA examiner noted that the Veteran had difficulty getting on and off of the examining table and walked slowly. Range of motion findings were as follows: flexion to 25 degrees, extension to zero degrees, right lateral bending to 25 degrees, left lateral bending to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. The examiner noted that on checking sensation, the Veteran had a right stocking type of hip esthesia. The examiner noted that the sensation was contributed to by loss of sensation after surgery on the Veteran's right knee. The examiner noted that it was not possible to check loss of joint function due to pain, fatigue, weakness, lack of endurance or coordination because of the Veteran's discomfort. The examiner noted that he had some tenderness in the lumbosacral area and had no paraspinal spasm or scarring. The examiner also noted that there was no increased heat or redness. Hip extension tests were negative bilaterally while straight leg raising tests were positive at 10 degrees, bilaterally. The examiner opined that the severity of the Veteran's lumbar spine disability was moderate to moderately severe. The examiner also opined that his diabetic neuropathy contributed to the severity in view of the fact that the Veteran was areflexic at both the knee and ankle bilaterally. The examiner could not ascertain how much the diabetic neuropathy contributed to the disability. An October 2010 VA outpatient treatment record reflects that the Veteran called VA to request a TENS unit. He reported that he had been issued one seven years prior by his physician and it no longer worked. A VA outpatient record dated in November 2010 indicates that the Veteran was referred to physical therapy for his chronic lumbar sacrum pain and issued a TENS unit, thermophore heating pad, and home exercise program. The Veteran underwent another VA examination in September 2012. At that time, he reported pain and bilateral buttock numbness. He also reported that he has difficulty sitting for long periods. On physical examination, the examiner noted forward flexion to 65 degrees with painful motion beginning at 65 degrees. The examiner noted extension to 10 degrees, with painful motion beginning at 10 degrees. The Veteran had normal right and left lateral flexion, with pain beginning at 30 degrees bilaterally. He had normal right and left lateral rotation as well, with pain beginning at 30 degrees bilaterally. He was able to perform repetitive testing and range of motion remained the same. The examiner noted that although the Veteran did not have additional limitation of motion following repetitive testing, he did have some functional loss/impairment including, less movement than normal and pain on movement. The September 2012 examiner also noted that the Veteran had mild paraspinus tenderness on palpation. He did not have any guarding or muscle spasm. He had normal strength in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexiopn, and great toe extension, all bilaterally. He had no muscle atrophy. His knee and ankle reflexes were absent, bilaterally. He had normal sensation bilaterally, in the knees, anterior thighs, right lower leg/ankle, and feet and toes. However, he had decreased sensation in the left lower leg and ankle. Straight leg raising tests were negative bilaterally. Despite the findings of decreased sensation and the Veteran's report of numbness in both buttocks, the examiner found that he did not have radiculopathy. The examiner also determined that the Veteran had no other neurological abnormalities related to his spine condition. The examiner noted that the Veteran did not have interverterbral disc syndrome. The examiner noted that the Veteran occasionally used a lumbar brace for assistance. The examiner diagnosed mild osteoarthritis. The examiner also noted that the lumbar spine disability impacted the Veteran's ability to work in that it was difficult for him to sit for prolonged periods in his job as a customer service representative. c. Analysis For the period prior to May 11, 2010, the Board finds that the Veteran is entitled to a rating of 40 percent but no higher. Specifically, his subjective complaints prior to the May 2010 VA examination were essentially the same as those raised at the May 2010 VA examination. The Board notes the Veteran's sworn testimony that he was on pain relieving medication at the time of the January 2008 VA examination and that the May 2010 VA examination captured his true disability picture. As noted above, in May 2010, the Veteran only had forward flexion to 25 degrees. Further, the examiner was unable to complete repetitive testing at that time, due to the Veteran's discomfort. The Veteran has offered sworn testimony that the way he was feeling at the May 2010 VA examination is the way he normally feels when he is not on his pain medication. T. page 4. The Board finds that the Veteran is competent to report his personal observations of his pain and to liken his range of motion described in the May 2010 VA examination report to his range of motion, without the benefit of pain relievers, during the period prior to the examination. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges that the Veteran is not competent to report the precise measurements of his range of motion as there is no indication that the Veteran used a goinometer to measure his range of motion during the period prior to May 11, 2010. However, the Board finds that he is competent to report that he felt like he was able to move to approximately the same distance during the period prior to the May 2010 VA examination as he was at the May 2010 VA examination. Moreover, the Board finds that the Veteran's testimony is credible. As the May 2010 VA examination report findings indicated flexion to less than 35 degrees, and the Veteran has competently and credibly reported that his disability picture was approximately the same during the period prior to the examination, the Board finds that a 40 percent disability rating is warranted for the period prior to the May 2010 VA examination. For both periods on appeal, the Board has considered whether a disability rating in excess of 40 percent is warranted for the Veteran's lumbar spine disability, but finds that it is not. Under the general rating formula for the spine, the next higher rating is for ankylosis of the entire thoracolumbar spine. As the Veteran had range of motion during both periods on appeal here, anklyosis was not shown. Additionally, for both periods on appeal, the Board has considered whether a higher disability rating is warranted for the Veteran's lumbar spine disability based on functional loss due to pain, weakness and flare-ups, pursuant to 38 C.F.R. §§ 4.40 and 4.45, and per the Court's holding in DeLuca. However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. In this case, the Veteran is now receiving a 40 percent disability rating for both periods on appeal. This is the maximum rating allowable regarding limitation of motion. The only higher ratings available are for ankylosis, i.e., when the spine is in a fixed position and there is no range of motion. Accordingly, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration. Further, a higher rating is not warranted for either period on appeal due to intervertebral disc syndrome and incapacitating episodes. As an initial matter, the Veteran has not been diagnosed with intervertebral disc syndrome. Even considering the criteria by analogy, the record does not indicate that the Veteran had any incapacitating episodes during either period on appeal. The Board has also considered whether the Veteran is entitled to a separate compensable rating for radiculopathy or any other neurological deficit as a result of his lumbar spine disability. Despite his complaints of numbness in his buttocks and a finding of decreased sensation in the left lower extremity, the September 2012 VA examiner specifically found that the Veteran did not have radiculpathy. Further, the remaining evidence of record does not indicate that the Veteran had radiculopathy related to his lumbar spine disability. Similarly, although the Veteran reported erectile dysfunction, such has not been related to his lumbar spine disability. The September 2012 VA examiner considered the Veteran's complaint of erectile dysfunction but found that he had no neurological defects related to the lumbar spine disability. As such, he is not entitled to separate compensable rating for any related neurological disorders. Based on the foregoing, the Veteran is entitled to a disability rating of 40 percent but no higher, for both periods on appeal. In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. mid and low back pain, numbness into the buttocks, and limitation of motion. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Indeed, the Veteran's statements weighed heavily in support of the increased rating granted for the period prior to May 11, 2010. However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators . . ."). Next, the disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, there is no showing that the Veteran's disability picture for his lumbar spine disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned ratings adequately describe the severity of the Veteran's symptoms for this disability during the periods of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's lumbar spine disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Nevertheless, frequent hospitalizations have not been shown. There is also no evidence that the Veteran's lumbar spine disability have resulted in marked interference with work. The Board acknowledges that the Veteran noted that he has difficulty sitting for long periods at his job, but he has not indicated marked interference, such as missed work, or that he is unable to take breaks, stand up, switch positions, as needed to relieve his back pain at work. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating of 40 percent, but no higher, for chronic lumbosacral strain with DDD for the period prior to May 11, 2010, is granted subject to the laws and regulations governing monetary awards. A rating in excess of 40 percent for chronic lumbosacral strain with DDD for the period from May 11, 2010, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs