Citation Nr: 1312850 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 06-24 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating in excess of 20 percent for degenerative intervertebral disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that granted service connection for degenerative intervertebral disc disease of the lumbar spine and assigned a 20 percent evaluation, effective February 12, 1999. Subsequently, the case was transferred to the jurisdiction of the RO in Buffalo, New York. This case was previously remanded by the Board in July 2009, June 2010, and August 2012 for additional development. In January 2013 the Veteran was assigned a separate rating for left lower extremity lumbar radiculopathy. The Veteran has not indicated that he disagrees with the rating or the effective date that was assigned for left lower extremity lumbar radiculopathy. As such, that issue is not considered to be before the Board at this time, and the Board will deal only with the issue of the orthopedic manifestations of the Veteran's service-connected degenerative intervertebral disc disease of the lumbar spine in this decision. The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it contains VA treatment records pertinent to the issue on appeal. FINDING OF FACT The Veteran's degenerative intervertebral disc disease of the lumbar spine is not manifested by severe limitation of motion; severe symptoms of intervertebral disc syndrome; severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, and narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion; forward flexion of the thoracolumbar spine or favorable or unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of a total duration of at least four weeks. CONCLUSION OF LAW The criteria for an increased rating for degenerative intervertebral disc disease of the lumbar spine, currently evaluated at 20 percent disabling, 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, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant 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). The notice requirements of the VCAA require VA to notify a claimant 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). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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). In this case, in November 2001 and February 2006 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 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 case was last adjudicated in January 2013, and any defect as to timing of notice is harmless, non-prejudicial error. Dingess/Hartman, 19 Vet. App. 473. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, private medical records, and VA treatment records. As noted, the Veteran's claim was last remanded for additional development in August 2012. Additional records were requested or acquired, a new VA examination was afforded to the Veteran and the examination report associated with the claims file, and all new evidence was considered in a January 2013 supplemental statement of the case. The Board finds that there was substantial compliance with the remand directives, fulfilling the duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was 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 notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The criteria for evaluating diseases or injuries of the spine were amended in September 2002 and September 2003. When a law or regulation changes after a claim has been filed but before the administrative appeal process is concluded, VA must apply the regulatory version that is more favorable to the veteran. Therefore, the Board must evaluate the Veteran's claims under the former criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The Board will lay out the former criteria and the amended criteria for the benefit of comparing the criteria. Prior to September 2003, Diagnostic Code 5292, which addressed limitation of motion of the lumbar spine, provided for an evaluation of 10 percent when limitation of motion was slight, 20 percent when limitation of motion was moderate, and 40 percent when limitation of motion was severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Prior to September 2002, Diagnostic Code 5293, which addressed intervertebral disc syndrome, provided for an evaluation of 10 percent for mild intervertebral disc syndrome, a 20 percent evaluation for moderate intervertebral disc syndrome with recurring attacks, and a 40 percent evaluation for severe intervertebral disc syndrome with recurring attacks and intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2001). Prior to September 2003, under Diagnostic Code 5295, a 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, and positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). As of September 2002, intervertebral disc syndrome was evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months - 40 percent disabling. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months - 20 percent disabling. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months - 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). For purposes of evaluations under Diagnostic Code 5293 (2002), an incapacitating episode 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. Id. at Note (1). "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Id. When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Id. at Note (2). Neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. As of September 2003, the criteria are as follows: Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. 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 - 20 percent disabling. 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 - 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). As of September 2003, the criteria for evaluating intervertebral disc syndrome, including the criteria for evaluation on the basis of incapacitating episodes, did not change, but the cite changed to 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. 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. Id. VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has reviewed all 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran was granted service connection for a low back condition, later recharacterized as degenerative intervertebral disc disease of the lumbar spine, in March 2005 due to the likely relationship of his current spinal disability to a fall on a truck bed and back injury that the Veteran incurred in 1970 while on active duty service. The Veteran asserts that his service-connected degenerative intervertebral disc disease of the lumbar spine warrants a higher initial rating than the 20 percent currently assigned. In March 2006 the Veteran wrote in a statement to VA that his spine disability makes it more difficult for him to work, that he now uses a cane to assist him with walking, and that he misses approximately 4 weeks of work a year due to pain. The Veteran has also stated that his back injury has caused him to have to switch to a night shift at work because it requires less physical activity, and that this causes a strain on his marriage. In a July 2010 statement the Veteran reported that he had periods of bedrest twice a day to alleviate his pain and discomfort. The Veteran's private treatment records show frequent complaints and treatment for chronic low back pain. The Veteran's chiropractic treatment records show that since at least June 1998 he has been regularly treated for low and middle back pain and stiffness in his back and neck. In March 2003 private X-rays revealed significant L-5 degenerative disc disease with hypertrophic spondylosis, and the Veteran was diagnosed with lumbar sprain/strain, degeneration of lumbar disc, and lumbar hypertrophic spondylosis. X-rays taken in 2003 and 2004 further confirmed that the Veteran had degenerative changes of the lumbar spine, with some disc space narrowing, disc bulging, and anterior spurring. In a September 2006 letter, the Veteran's chiropractor wrote that the appellant's condition was "debilitating" and often required bed rest for symptomatic relief. He also wrote that the Veteran was not to lift over 20 pounds or perform repetitive lifting, bending, or twisting activities. The Veteran's chiropractic records show that in August 2002 it was recommended that he stay home from work for 5 days and in July 2006 it was recommended that he stay home from work for 3 days. The Veteran's VA treatment records further show a long history of complaints of lower back pain. In March 2006 he was treated for increased back pain and issued a transcutaneous electrical nerve stimulation (TENS) unit to improve functional status and decrease pain. X-rays showed degenerative disc disease with no spondylolisthesis or spondylolysis, and the Veteran was referred for physical therapy. In June 2006 the Veteran again was treated for chronic low back pain and reported that he was unable to lift objects and had pain upon flexion. In August 2010 the Veteran had a VA physical therapy assessment and reported that his low back pain had become more constant in the past two or three years. He described the pain as achy and sometimes sharp and stated that it was exacerbated by rotation, bending, lifting, and prolonged positioning. He also stated that he was stiff when getting out of bed in the morning and that home repairs, lifting at work, and activities of daily living were slower and harder due to pain. From August 2010 to October 2010 the Veteran underwent frequent physical therapy for chronic low back pain. In June 2012 he indicated to a primary care physician assistant that he used the Physical Therapy department as needed for exercises and stretches. The Veteran has undergone four VA examinations regarding the severity of his lower back disability during the course of this appeal. In a February 2005 examination, the VA examiner reviewed the claims file and discussed history with the Veteran. The Veteran reported having back pain upon lifting, pushing, pulling, kneeling, stooping, coughing, sneezing, and sitting for long periods of time. The Veteran also reported having flare-ups of back pain every couple of months which last one to two days and having incapacitating episodes two or three times a year which last a day. The Veteran stated that he worked in a sedentary job at a water treatment plant and that he misses four to five days a year due to back pain. The examiner noted that there was no significant deformity of the lumbar curve and no tenderness on palpation. Range of motion testing showed thoracolumbar flexion of 45 degrees, extension of 10 degrees. Side bending of 20 degrees, and thoracolumbar rotation of 30 degrees, and straight leg raising of 80 degrees bilaterally. Repetitive motion showed no change in the range of motion or pain pattern. The examiner diagnosed the Veteran with degenerative intervertebral disc disease of the lower lumbar spine without evidence of radiculopathy or radicular irritation. In September 2009 the Veteran was again afforded a VA examination. The examiner reviewed the claims file and discussed the Veteran's history. The Veteran reported that he wore a back brace on occasion and that he is unable to lift, push, pull, sit for more than 45 minutes, or walk a mile. He stated that he has daily flare-ups of back pain and that in the past year he had one totally incapacitating episode that lasted for several days. He also reported that he still worked at the water treatment plant and that he was able to perform his duties "without any difficulties whatsoever." The examiner found that there was slight flattening of the lumbar lordosis and tenderness on palpation of both sacroiliac joints. Range of motion testing showed that thoracolumbar flexion was 50 degrees, extension was 10 degrees, side-bending was 20 degrees to each side, thoracolumbar rotation was 30 degrees to each side, and straight leg raising was 80 degrees bilaterally. The Veteran commented that he had recently had a chiropractic session and that he felt that he could move much better because of that. Repetitive motion showed no change in range of motion or pain levels. The examiner diagnosed the Veteran with degenerative intervertebral disc disease of the lower lumbar spine with instability at the lumbosacral level and an incomplete S1 radiculopathy of the left lower extremity. In August 2010 the Veteran was afforded an additional VA examination. The examiner reviewed the claims file and discussed history with the Veteran. The Veteran reported experiencing "severe" flare-ups every three or four weeks which lasted for one or two days, and that during flare-ups pain significantly affected his functional activity. He reported a history of pain, stiffness, and spasm in his back and radiating pain across his hips and left foot and stated that he was unable to walk for long without causing a flare-up. The Veteran stated that he had been told by his medical provider to be on bedrest for two days during the past year and that he was unable to lift over 20 pounds, bend, twist, or participate in most sports. The Veteran also reported that he was still employed fulltime, that he had missed one week of work during the previous 12 month period, and that any lifting activities at work were performed by his co-workers. The examiner noted lumbar flattening and pain with motion, but no spasm, atrophy, tenderness, weakness, or guarding of the thoracolumbar sacrospinalis. Range of motion testing showed flexion of 40 degrees, extension of 5 degrees, left and right lateral flexion of 15 degrees, left lateral rotation of 25 degrees, right lateral rotation of 10 degrees, and evidence of pain on active motion, but without additional limitation of range of motion. MRI testing showed moderate degenerative disc disease at L5-S1 including grade 1 retrolisthesis with mild narrowing of the spinal canal and neural foramen bilaterally mild degenerative disc disease at L4-L5 with mild spinal canal narrowing and central disc protrusion, and borderline spinal canal narrowing at L3-L4. The examiner diagnosed the Veteran with advanced degenerative intervertebral disc disease of the lower lumbar spine with chronic S1 radiculopathy of the left lower extremity. The Veteran was also afforded a VA examination in October 2012. The Veteran reported that he experienced intermittent back spasms and pain, but that he did not use any assistive devices. The Veteran also reported that when he has flare-ups, it "slows him down" and prevents him from doing physical or strenuous activities. The Veteran stated that in the past year he has had incapacitating episodes that lasted less than one week in total. The examiner noted that the Veteran's disability affects his ability to work because it makes going up and down stairs and lifting more difficult and that he is nervous to spend time working alone. The examiner provided a diagnosis of degenerative disc disease and noted no tenderness, guarding, or muscle spasm of the thoracolumbar spine. Range of motion testing showed forward flexion of 70 degrees, extension of 15 degrees, left and right lateral flexion of 15 degrees, and left and right lateral rotation of 20 degrees, without any additional limitation of range of motion due to pain. The Veteran was able to perform repetitive-use testing with three repetitions and no showing of any decrease in range of motion. Repetitive-use testing did reveal some general functional loss, including less movement than normal and pain on movement. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the orthopedic manifestations of the degenerative intervertebral disc disease of the lumbar spine at any time during the current appeal under both former and current rating criteria. Considering the Veteran's disability based upon the limitation of motion caused by his degenerative intervertebral disc disease, all of the VA examiners and medical evidence of record supports a finding that the Veteran has moderate limitation of motion of the lumbar spine. Under the prior regulations, a rating higher than 20 percent is not warranted unless the Veteran demonstrates "severe" limitation of motion or "severe intervertebral disc syndrome with recurring attacks and intermittent relief." 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). The Veteran has indicated that he experiences recurring attacks, or "flare-ups," but his overall range of motion has not been limited to the extent that it inhibits his ability to work full time or to perform his daily tasks of living. All of the VA examiners have noted that the Veteran's mobility is somewhat restricted, that he may perform tasks more slowly, has been advised against bending or twisting motions, and that sports and exercise and likely prohibited entirely. This indicates that the Veteran has moderate limitation of motion, which warrants the 20 percent he is currently assigned. Id. The Board notes that any tangential neurological symptoms, such as radiculopathy, which have been noted by several of the VA examiners, have not been evaluated here as the Veteran was awarded a separate rating of 20 percent for radiculopathy of the left lower extremity in January 2013. Looking to the VA rating criteria regulations that went into effect in September 2003, the Veteran's VA examinations have shown no less than a thoracolumbar forward flexion of 40 degrees at any time. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). The VA examiners noted pain upon repetition of motion, but no further limitation of motion due to pain. At no point has any examiner found that the Veteran had favorable or unfavorable ankylosis of the entire spine or the entire thoracolumbar spine. Id. Under the prior regulations for lumbosacral strain, the Veteran's assigned 20 percent initial rating is also appropriate. The Veteran has stated that his disability does manifest with occasional muscle spasms upon movement of the spine, although this has not been shown clinically, and some limitation of lateral movement has been shown upon range of motion testing. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The Veteran's disability has not, however, been shown at any time to have manifested with listing of the whole spine to the opposite side. While the Veteran's range of motion testing has shown limitation of forward and lateral motion, it has not done so in conjunction with any findings of abnormal mobility on forced motion, as would be required by 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Considering the Veteran's orthopedic symptoms based upon intervertebral disc syndrome and incapacitating episodes, the disability would still not warrant more than a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2012). In all four VA examinations, the Veteran has reported that he has experienced no more than one week total of incapacitation per year. The Veteran's chiropractic records show that in August 2002 he was recommended to stay home from work for a period of 5 days, but there is no evidence in the record of the Veteran being incapacitated for an additional period during that year that would total at least four weeks of incapacitation, as would be required for a higher rating than 20 percent. Id. While the Veteran did indicate in a March 2006 statement that he misses 4 weeks of work per year due to pain, he does not clarify that this is actually due to incapacitating episodes caused by his low back disability, and this interpretation would furthermore be inconsistent with the statements he has repeatedly made to VA examiners. The Veteran has consistently stated in four separate VA examinations that he has had no more than a week per year of incapacitated periods and absence from work. The Board therefore finds that the March 2006 statement is lacking in credibility and unpersuasive in light of the other evidence of record. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (It is the responsibility of the Board to assess the credibility and weight to be given the evidence.) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). An increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45). The Board has found, however, that while the Veteran clearly has some limitation of motion and pain, his symptoms are those contemplated for and adequately compensated for in the rating criteria. The most recent examination, performed in October 2012, found that the Veteran was able to perform repetitive-use testing with three repetitions and no decrease in range of motion. None of the VA examinations have found that the Veteran had any measurable decrease in functional use, range of motion, or pain levels upon repetitive-use testing. These findings therefore do not establish that the Veteran warrants an evaluation in excess of 20 percent based upon these factors. The Board has also considered whether the Veteran's disability 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 extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); 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, 4 Vet. App. at 60. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The Veteran has reported that he still works full time, and while his disability has required him to work the night shift instead of the day shift due to the less strenuous nature of the position, it shows that the Veteran has been able to adequately compensate for his disability without any further loss of income or productivity. The record does not show that the Veteran has required any hospitalization during the appeals period for degenerative intervertebral disc disease of the lumbar spine, nor is there evidence in the medical records of an exceptional or unusual clinical picture. The Veteran's disability picture is sufficiently contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. Based on the foregoing, the Board finds that the rating currently assigned to the Veteran is appropriate and that the evidence of record preponderates against a finding that the criteria for a rating in excess of 20 percent have been met. As such, the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 20 percent for degenerative intervertebral disc disease of the lumbar spine is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs