Citation Nr: 1312398 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-20 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for chronic muscular strain, with degenerative instability of L4-5 disc degeneration and L5-S1 degeneration, developmental instability with spondylolisthesis, and history of L5-S1 spondylolysis, L5 neurocentral bone fusion synchondrosis and back sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to September 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., which granted service connection for chronic low back muscular strain, evaluated as 10 percent disabling, effective November 25, 2002. The Veteran perfected an appeal of the rating assigned. Subsequently, by a March 2009 rating decision, the Portland, Oregon, Regional Office (RO), recharacterized the Veteran's disability as chronic muscular strain, with degenerative instability of L4-5 disc degeneration and L5-S1 degeneration, developmental instability with spondylolisthesis, and history of L5-S1 spondylolysis, L5 neurocentral bone fusion synchondrosis and back sprain, and increased the evaluation from 10 percent to 20 percent, effective November 25, 2002. Because 20 percent is not the highest possible rating available under the rating schedule for this disability, and because the Veteran has not indicated that he is content with the rating, the appeal continues. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In November 2011, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2012. As discussed below, the Board finds that there was substantial compliance with its remand; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in his substantive appeal, received in May 2009, the Veteran requested a hearing on appeal before a Veterans Law Judge at the RO (Travel Board hearing). In December 2010, the Veteran elected to have a videoconference hearing. However, in a statement dated in May 2011, the Veteran withdrew his request for a hearing. 38 U.S.C.A. § 20.704(e) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Since the award of service connection, the Veteran's back disability has been manifested by some painful limitation of motion with tenderness and spasm in the paraspinous muscles; his remaining functional range of motion is better than 30 degrees of flexion. Severe limitation of motion, severe lumbosacral strain, or ankylosis has not been shown. 2. The Veteran's degenerative disc disease is not productive of incapacitating episodes having a total duration of at least four weeks during any 12-month period. Bedrest has not been prescribed. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for chronic muscular strain, with degenerative instability of L4-5 disc degeneration and L5-S1 degeneration, developmental instability with spondylolisthesis, and history of L5-S1 spondylolysis, L5 neurocentral bone fusion synchondrosis and back sprain, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent re-adjudication of the claim, as in a statement of the case (SOC) or SSOC. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in August 2007 from the RO to the Veteran, which was issued prior to the RO decision in October 2007. Additional letters were issued in July 2008 and December 2011. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. There was a re-adjudication afterwards. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. In any case, the Veteran's underlying service connection claim was granted. For downstream issues such as an appeal for a higher initial rating, additional VCAA notice is not necessary. See Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this claim. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Veteran has been afforded VA examinations on the issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issues addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background. The service treatment records reflect that the Veteran received treatment on several occasions for complaints of back pain. In September 1958, he was diagnosed with defect, bone fusion, neurocentral synchondrosis, bilateral L5. In August 1959, a physical fitness test revealed slight tenderness to palpation over the midline at the lumbosacral junction. The final diagnosis was defect, bone fusion, neurocentral synchondrosis, bilateral L5. A medical review board determined that the defect existed prior to service and had not been aggravated thereby. The Veteran initially filed a claim of service connection for a back disorder in November 2002. Submitted in support of the claim were treatment records, VA as well as private treatment reports, dated from July 2000 to June 2003. Also submitted in support of the claim was a lay statement from K. L., dated in September 2003, indicating that he and the Veteran hitched a ride from someone in November 1956; he stated that the car that picked them up was involved in an accident that caused the car to roll over. VA progress notes dated from September 2004 to March 2005 show that the Veteran received ongoing clinical attention and treatment for complaints of chronic low back pain. A CT scan in January 2005 revealed disk bulging at each level, prominent degenerative change involving facet joints at L4-5. An employee physical dated in February 2005 reported an assessment of degenerative joint disease of the spine. On the occasion of a VA examination in August 2007, the Veteran indicated that he had no orthopedic problems until he injured his back during a motor vehicle accident in service in 1956. He reported another back injury that occurred when he was rescuing a sailor that had gone overboard. He stated that the back continued to bother him until he left the military for medical reasons due to back pain. The Veteran reported some mild pain in the mid back; the low back had chronic severe pain. He also reported joint discomfort in both knees; however, there was no collapsing or locking of either knee. There was no numbness in either lower extremity. The Veteran reported increased pain with coughing. It was noted that the Veteran had subjective symptoms of pain, weakness, and easy fatigability in the back. The Veteran reported flare-ups with standing, walking, driving, and laboring. On examination, it was noted that muscle condition was average; cooperation was very good. He was limping with both legs and he attributed the limping to his back pain. The Veteran was able to rise on his toes and heels. He was able to flex forward and reach to the feet. Percussion of the flexed spine resulted in some pain at L5. The legs were equal in length. Flexion was to 90 degrees, extension to 15 degrees, rotation was 20/20, and lateral bending was 30/25. There was some moderate pain with these movements and the pain was over the full motion. There was some muscle spasm in the back. There was a mild low back tenderness at L5. Alignment of the spine was very good. Reflexes were normal at the knees and ankles. Extensor muscles and sensation were normal at lower legs and feet. Calf circumference was equal. Straight leg raising was easily tolerated to 80 degrees bilaterally. An MRI of the spine revealed rather bad disc degeneration at L4-5 and a moderate degeneration at L5-S1. The examiner noted that the back had a history of injury, pain and treatment in the military; he also noted that the back had a history of being totally well before military and during basic training. And, the back has continued to be painful since the injuries in the military. The diagnosis was chronic muscular strain superimposed on degenerative and developmental instability. The development instability was spondylolisthesis. Working capacity was diminished by chronic orthopedic distress in the back; he was retired from working, and he is limited to lighter types of work. Prolonged bed rest was not being utilized; he is out of bed every day. Received in March 2009 were VA progress notes dated from August 2004 to September 2008, which show that the Veteran continued to receive clinical attention and treatment for low back pain. The course of treatment involved physical therapy. An MRI of the lumbar spine, performed in August 2004, revealed multilevel mild to moderate facet arthropathy from L2-3 through L5-S1, worse at L5-S1, and mild disc desiccation at multiple levels without significant height loss. An MRI in July 2007 revealed multilevel degenerative changes, most severe at L4-5. The Veteran was afforded another VA examination in December 2011 pursuant to the Board's November 2011 remand. At that time, the Veteran indicated that his symptoms have continued and have gradually worsened. The Veteran reported increased back pain with standing, walking or driving; those activities cause some flare-up difficulties. Forward flexion was to 80 degrees with pain at 75 degrees. Extension ended at 10 degrees, with pain at 5 degrees. Right and left lateral were 25 degrees with pain at 20 degrees. Rotation was 20 degrees bilaterally, with no pain. Range of motion after repeat motion revealed flexion to 80 degrees, extension was to 10 degrees, lateral bending was 25 degrees bilaterally, and rotation was 20 degrees bilaterally. There was tenderness at the low back at the L5 area. There were no spasms. No muscle atrophy was noted. The examiner noted that recent x-ray of the lumbar spine revealed disk degeneration at multiple levels. A forward slippage of L4 on L5 has suggested spondylolisthesis, but radiology says that the paras intraarticular appear to be intact. There is no evidence on the shoes that he favors either lower extremity. The examiner noted that the Veteran's working capacity is reduced by his back problems; he is limited to fairly light work. III. Legal Analysis. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two 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 (2012). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where, as here, an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). After careful review of the evidentiary record, the Board concludes that the Veteran's low back disorder has not changed and a uniform evaluation is warranted. 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. 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. 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 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (2012) (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. 38 C.F.R. § 4.59 (2012). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran is presently assigned a 20 percent evaluation for chronic muscular strain, with degenerative instability of L4-5 disc degeneration and L5-S1 degeneration, developmental instability with spondylolisthesis, and history of L5-S1 spondylolysis, L5 neurocentral bone fusion synchondrosis and back sprain under Diagnostic Codes 5243-5237. The General Rating Formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to Diagnostic Codes 5237 to 5243, unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the General Rating Formula for diseases and injuries of the spine, ratings are assigned as follows: a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is awarded for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (2012) (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent evaluation. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As noted previously, the Veteran has been assigned a 20 percent evaluation for the back disability. This evaluation contemplates forward flexion greater than 30 degrees or a combined range of motion not greater than 120 degrees. In order to warrant a higher evaluation under the General Rating Formula, there must be the functional equivalent of limitation of flexion to 30 degrees or less due to such factors as limitation of motion, pain on motion, weakness, or excess fatigability. See DeLuca, 8 Vet. App. at 202. Based on a review of the record, the Board finds that the Veteran does not demonstrate the criteria necessary for an evaluation in excess of 20 percent for his chronic muscular strain, with degenerative instability of L4-5 disc degeneration and L5-S1 degeneration. Specifically, the Veteran has never demonstrated the functional equivalent of flexion of his thoracolumbar spine limited to 30 degrees or less. At most, the Veteran's functional forward flexion was shown to be greater than 30 degrees. Even considering the effects of pain on use, the Veteran's forward flexion has never been shown to be functionally limited to less than 60 degrees. Significantly, the August 2007 VA examination disclosed flexion to 90 degrees; however, the examiner noted that flare-ups in the back are represented by decreasing flexion by 30 degrees. The December 2011 VA examination disclosed flexion to 80 degrees, with pain starting at 75 degrees. Clearly, even when we accept that where pain starts he is functionally limited, he retains functional flexion greater than 30 degrees. The Board has considered the lay and medical evidence. However, the Veteran does not describe the functional equivalent of limitation of flexion to 30 degrees or less. In addition, there is no evidence that the Veteran has ever been diagnosed with ankylosis of the thoracolumbar spine or complained of an inability to move his spine. Therefore, an increase to a 40 percent disability rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The regulations explicitly take pain upon motion into account; therefore, application of the principles of DeLuca is unnecessary. In the event, however, that the principles of DeLuca are applicable to this regulation, the Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, 4.45 would warrant a higher rating. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). It is not disputed that the Veteran has pain on motion, but the Board finds that the currently assigned 20 percent disability rating adequately compensates him for his pain and functional loss of motion in this case. Furthermore, while the examinations have revealed findings of spasm and tenderness, the Veteran demonstrated no weakness, or guarding of his lumbar spine. Moreover, even taking into account any limited motion caused by repetition, pain, incoordination, or fatigability, the Board finds that an increase to more than a 20 percent rating is not warranted under these diagnostic codes. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded). With regard to intervertebral disc syndrome, the Veteran must demonstrate incapacitating episodes lasting a total duration of at least four weeks during the past twelve months to warrant an increased rating. The treatment records do not reflect the incurrence of incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. Overall, there is no competent and probative evidence of record showing the Veteran had incapacitating episodes during the appeal period, with bedrest that was prescribed by a physician. Therefore, a 40 percent disability rating is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes. Furthermore, the evidence does not show that there are objective neurologic abnormalities, such as neuropathy, or bowel or bladder impairment, associated with the Veteran's service-connected low back disability. As such, a separate rating for this possible manifestation is not warranted. The Board notes that the analysis of the schedular rating is not complete because, during the pendency of the claim and effective September 26, 2003, the rating schedule for evaluation of that portion of the musculoskeletal system that addresses disabilities of the spine was revised. 68 Fed. Reg. 51454-56 (Aug. 27, 2003). The rating schedule was also revised in August 2002, but this occurred prior to the effective date of the award of service connection for his low back disability (November 25, 2002); thus, the earlier revision is not applicable to this claim. VA must consider the Veteran's initial rating claim involving the low back under each set of rating criteria, with consideration of revised criteria no sooner than the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 15-16 (2003), rev'd on other grounds, 370 F.3d 1124 (Fed. Cir. 2004); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); Green v. Brown, 10 Vet. App. 111, 116-19 (1997). See also VAOPGCPREC 3-2000 (Apr. 10, 2000) and VAOPGCPREC 7-2003 (Nov. 19, 2003). Under the old rating criteria, Diagnostic Code 5292 provided for a 10 percent rating when there is slight limitation of motion of the lumbar spine, a 20 percent rating when there is moderate limitation of motion of the lumbar spine, and a 40 percent rating when there is severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a (2002). Additionally, Diagnostic Code 5295 was in effect for evaluating lumbosacral strain. That diagnostic code provided for a 20 percent rating for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilaterally, in the standing position. A 40 percent rating was warranted for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a (2002). The rating criteria for evaluating intervertebral disc syndrome were essentially equivalent to the current rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). In consideration of the evidence of record, the Board does not find that the old rating criteria provide the basis for an initial rating in excess of 20 percent either. Based on the previously discussed range of motion measurements that were produced during the claim, the limitation of motion of the Veteran's lumbar spine has not approximated severe limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5292. Additionally, the evidence does not show an approximation of severe lumbosacral strain as the symptoms reflective of that level of disability have not been shown by the evidence. See 38 C.F.R. § 4.71a, Diagnostic Code 5295. Furthermore, as detailed previously, incapacitating episodes have not been evident; thus, a higher rating is not warranted under old Diagnostic Code 5293. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2012). While the Board realizes that the Veteran's back disorder interferes with his ability to perform in the workforce, this impairment is already contemplated by the applicable schedular criteria so that consideration of an extraschedular basis is not shown to be necessary. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). See also Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The findings needed for the next higher evaluation in excess of 20 percent are not demonstrated in the evidence of record. Because the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. See Gilbert, 1 Vet. App. at 53. ORDER An initial rating in excess of 20 percent for chronic muscular strain, with degenerative instability of L4-5 disc degeneration and L5-S1 degeneration, developmental instability with spondylolisthesis, and history of L5-S1 spondylolysis, L5 neurocentral bone fusion synchondrosis and back sprain, is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs