Citation Nr: 1313232 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-36 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for lumbar strain. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which continued a 10 percent evaluation for the service-connected lumbar strain disability. A notice of disagreement was filed in March 2010, a statement of the case was issued in August 2010, and a substantive appeal was received in August 2010. In July 2012 the Board remanded the matter for additional development. Please note 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. For the period prior to August 10, 2012, impairment due to the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, but without limitation of thoracolumbar flexion to 60 degrees or less, limitation of combined ranges of motion to 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour; separately ratable neurological symptoms were not shown; incapacitating episodes were not shown. 2. For the period from August 10, 2012, the Veteran's service-connected lumbar strain disability has been manifested by pain which effectively limits forward flexion to less than 60 degrees, but not less than 30 degrees; there is no ankylosis, or incapacitating episodes. CONCLUSIONS OF LAW 1. For the period prior to August 10, 2012, a rating in excess of 10 percent is not warranted for the Veteran's service-connected lumbar strain disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 2. For the period from August 10, 2012, a rating of 20 percent (but not higher) is warranted for the Veteran's service-connected lumbar strain disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify After reviewing the claims file, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in November 2009, the claimant was informed of the information and evidence necessary to warrant entitlement to an increased rating for a low back disability. Moreover, in that letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that this letter was sent to the appellant prior to the December 2009 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to issue an additional VCAA notice letter. On March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded. Id. at 488. In this case, the timely letter sent in November 2009 provided the notice contemplated by Dingess. The appellant was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. This letter complied with the notice requirements for increased rating claims enumerated in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice. The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has since reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim, the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent VA treatment records have been obtained. Private medical records, have been associated with the claims file. Pursuant to the Board's July 2012 remand, the RO attempted, but was unable to obtain the Veteran's records from the San Antonio VA Medical Center (VAMC). A Formal Finding of Unavailability was issued in December 2012 certifying that all procedures to obtain additional records described by the Veteran had been correctly followed, and all efforts had been exhausted; further attempts would be futile. The Veteran has been afforded VA examinations focused upon the claim on appeal; December 2009 and August 2010 (January 2013 addendum), VA examination reports addressing the Veteran's claim is of record in the paper claims file and Virtual VA electronic file. The Board finds that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent features of the Veteran's lumbar strain disability to allow for fully informed application of the appropriate rating criteria in this case. The VA examination reports, in addition to other pertinent probative evidence of record, provide probative medical evidence adequately addressing the issue decided below. [The Board notes that the RO also obtained a VA medical opinion in March 2013; however, the opinion only addresses whether the disability on appeal is related to the Veteran's service when service connection has already been established. As such, the Board finds this opinion is not pertinent to the Veteran's claim, and need not be discussed herein.] The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to this appeal. Under these circumstances, no further action is necessary to assist the claimant with this appeal. Factual Background At the outset, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The present appeal involves the Veteran's claim that the severity of his service-connected lumbar strain warrants a higher disability rating. The RO received the Veteran's claim for an increased rating for his service-connected lumbar strain disability in September 2009. In a March 2009 VA physician's note, it was noted that the Veteran was advised to have back surgery, but refused. His assessment was low back pain. On December 2009 VA (fee basis) examination, the Veteran reported he currently has limitation in walking because of his spine disability; on average he can walk 200 feet, which takes him five minutes to accomplish. He reported that he experienced falls due to his spine disability. He reported that he has stiffness, fatigue, spasms, decreased motion and numbness. He does not experience paresthesia. He has weakness of the spine and leg. He stated that he has bowel and bladder problems. There is fecal leakage that occurs more than 2/3 of the day, and is described as moderate. He does not require a pad. He urinates 3 times a day at intervals of 4 hours. He reports urinary frequency at night is 3 times at intervals of 2 hours. He does not experience incontinence, obstipation, or erectile dysfunction. He stated that he experiences constant pain in his lower and upper back; located on the neck to the lower back that travels to both legs. He indicated that the pain level was severe; and can be exacerbated by physical activity. The pain is spontaneous, and is relieved by rest and medication. During flare-ups he experiences functional impairment which is described as weakness in the legs and lower back. He stated that he was never hospitalized nor had any surgery for his lumbar strain disability. His lumbar strain disability has not resulted in any incapacitation in the past 12 months. His overall functional impairment includes the inability to stand or sit for long periods of time, lift anything and perform household chores. On physical examination, his posture was bent over. His gait was within normal limits. His walk was steady; however for ambulation, he required a brace on the lumbar, because his lumbar needed support. He did not require crutches, a cane, corrective shoes, a wheelchair, prosthesis or a walker. There was no radiating pain on movement. Muscle spasm was absent. There was no tenderness or guarding of movement noted. There was no weakness shown. Muscle tone and musculature were normal. There was negative straight leg raising on the right and left. Lasegue's sign was negative. There was no atrophy present in the limbs, or ankylosis of the thoracolumbar spine. On range of motion testing, flexion was to 70 degrees, extension to 30 degrees, right and left lateral flexion were both 20 degrees, and right and left rotation were both 20 degrees. Repetitive range of motion was possible, and there was no additional degree of limitation. The joint function of the spine was additionally limited after repetitive use due to pain and pain had the major functional impact. It was not additionally limited after repetitive use due to fatigue, weakness, lack of endurance and incoordination. Rectal examination showed no reduction of lumen. Sphincter control and rectal tonus were normal. Neurological examination revealed no sensory deficits from L1-L5. Examination of the sacral spine revealed no sensory deficits of S1. There was no lumbosacral motor weakness. Right and left lower extremity reflexes revealed knee jerk 1+ and ankle jerk 1+. The lower extremities showed no signs of pathologic reflexes. There were normal cutaneous reflexes. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. He had decreased vibration sense and decreased pin prick sense, distal more than proximal. The diagnosis was lumbar strain. The examiner noted that at that time the Veteran's disability was active. His subjective factors were stiffness, fatigue, spasms, decreased motion, and numbness. The objective factors were decreased motion and normal neurological examination. It was noted that the effect of the disability on the Veteran's usual occupation was mild due to pain related to lifting, standing, sitting and walking. The effect of the disability on the claimant's daily activity was none. X-rays of the lumbar spine revealed minimal to moderate diffuse lumbar spondylosis in association with multilevel degenerative disc space narrowing. There was no acute compression injury or subluxation of the segments. The impressions were minimal to moderate diffuse lumbar spondylosis, and multilevel degenerative disc space. In an April 2010 physical therapy consult note, the Veteran's subjective complaints of chronic low back pain with the pain level at 8/10 were noted. He denied any recent injury, trauma, fall or accident. He reported that the pain was aggravated by daily routine. It was partially relieved by massage. The Veteran did not have any superficial metal in the low back area. On objective examination, his posture was forward-head with rounded shoulders. His gait/balance was normal. He received training and instructions for proper use and care of TENS [transcutaneous electrical nerve stimulation] unit and electrodes. At that visit the Veteran applied 4 electrodes to his lumbar spine region, tried all modes for 15 minutes at intensity level 3-4/10. He reported good pain relief with pain level reduced to 0/10. The assessment was good pain relief with initial use of TENS unit; TENS unit was most likely beneficial for pain relief. The Veteran was discharged from physical therapy. An August 2010 needle EMG [electromyograph] examination revealed, in pertinent part, normal S1 and L5 paraspinal. September 2010 MRI of the lumbar spine revealed stable interval examination with degenerative changes. Findings were most significant at L5/S1 for stable desk bulge and small central zone protrusion, which abuts the S1 nerve roots and exhibits mild mass effect on the S1 nerve root. There is also likely lateral recess nerve root impingement at L3-4 bilaterally and on the left at L4-5. On VA examination on August 10, 2012, the Veteran reported that his lumbar spine hurts and that he cannot bend. It is aggravated by his position and posture of sleep. He stated that pain from hip radiates. He had numbness in his toes. He had no treatment to include surgery, or rehabilitation. He had no hospitalizations. He related that he was not working. He does not drive and does not attend any significant outside activities. He did not report that flare-ups impact the function of his lumbar strain disability. Range of motion testing revealed forward flexion to 55 degrees, extension to 15 degrees, right and left lateral flexion were both to 15 degrees, and right and left lateral rotation were both to 15 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions. Range of motion after 3 repetitions were forward flexion to 55 degrees, extension to 15 degrees, right and left lateral flexion were both to 15 degrees; right lateral rotation was to 15 degrees and left lateral rotation was to 10 degrees. There was additional limitation of motion of the thoracolumbar spine following repetitive-use testing. There was functional loss and/or functional impairment of the thoracolumbar spine due to less movement than normal and weakened movement. He did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. He did not have guarding or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. Muscle strength for the hips, knees, ankles and toes was 5/5 (normal strength). Reflex examination showed normal reflexes of the knees and ankles. Sensory examination was normal for the upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). Straight leg raising test results were negative. He did not have radicular pain or any other signs or symptoms due to radiculopathy. It was noted that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability (such as bowel or bladder problems/pathologic reflexes). He did not have intervertebral disc syndrome (IVDS) to include having no incapacitating episodes over the past 12 months. The Veteran used a cane and a walker to ambulate. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis present. It was noted that his thoracolumbar spine disability does not impact his ability to work. The diagnosis was spondylosis of the lumbar spine without lower extremity radiculopathy. In a January 2013 addendum to the August 2012 VA examination (by the same VA examiner), VA examiner noted review of the claims file and other available records. He opined that the Veteran claimed bowel leakage and neurological sequela are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected lumbar strain disability. By rationale, the examiner noted that on January 2008 EMG/NCS there is electrodiagnostic evidence of a cervical radiculopathy of C5/6, but such does not affect the lumbar plexus of nerves. On a physical medicine rehabilitation note the Veteran admitted to commenting that the right cervical nerve neuropathy numbness resolved since he no longer sleeps in a position or posture of aggravation. In a note dated in November 2008, the Veteran denied radiation of the leg, foot, and toes numbness. He also indicated that he did not want surgery. In March 2009 the Veteran reported back pain that radiated to the back of his leg. The Veteran was evaluated by physical therapy in April 2010 for low back pain and treated with TENS unit and reported good relief. That note was silent for nerve issues or bowel or bladder issues on evaluation in August 2010. In a March 2012 primary care nurse annual visit note, the Veteran's bowel score continent was -2. Bladder score continent for greater than 7 days was -2. This Barthel's score indicates that a patient is independent with activities of daily living. There was no incontinence shown. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability (such as bowel or bladder) on August 2012 VA examination. The examiner opined that the claims file was silent for incontinence and for bowel leakage. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability there from and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Lumbosacral strain is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula, outlined below). 38 C.F.R. § 4.71a, Codes 5237. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion for 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Analysis The Veteran is currently service-connected for a lumbar strain only. Degenerative disc disease and lumbar stenosis of the lumbar spine had been established in previous rating decision (March 1995) as unrelated to service. The Veteran's lumbar strain disability has been assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board finds that range of motion data found in the August 2012 VA examination reports show that spinal flexion was greater than 30 degrees but not greater than 60 degrees. August 2012 VA examination reveals the Veteran had forward flexion to 55 degrees. As such, the next higher rating of 20 percent disability is warranted from August 10, 2012 (the date VA examination reveal the Veteran had forward flexion to 55 degrees). However, prior to August 10, 2012, it is not shown that the Veteran's lumbar strain disability had been manifested by limitation of flexion to 60 degrees or less, limitation of combined thoracolumbar ranges of motion to 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Therefore, for the period prior to August 10, 2012, a rating in excess of 10 percent is not warranted. Further, it is not shown that a 40 percent disability rating is warranted at any time during the appeal period because there is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less. Here, flexion was to 70 degrees on December 2009 VA examination and to 55 degrees on examination in August 2012. There was also no evidence of favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent rating. A 50 percent rating is not warranted because there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is not for application because there is no evidence of unfavorable ankylosis of the entire spine. Here, there was range of motion exhibited. Accordingly, a 20 percent rating is warranted for the period from August 10, 2012. For the period prior to August 10, 2012 the next higher (20 percent) rating under these criteria is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5237. In consideration of additional factors that could provide a basis for and increase (or additional increase) for the periods under consideration, the Board acknowledges that the Veteran has chronic low back pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, 8 Vet. App. 202. However, it is not shown that the Veteran has any functional loss beyond that being compensated. While VA outpatient treatment records, VA examination reports, and statements from the Veteran note that he suffers from chronic low back pain with episodes of flare-ups that cause increases in pain and limitation of motion, the ratings assigned contemplate such degree of impairment. Notably, on August 2012 VA examination, the Veteran's range of motion essentially remained the same after repetitive use testing (with the exception of left lateral rotation showed a loss of 5 degrees). The Board has also considered whether the Veteran suffers from any neurological symptoms that would warrant a separate compensable rating for any period under consideration, and acknowledges that during the December 2009 VA examination, the Veteran complained of bowel problems, weakness of the leg and numbness. However, on physical examination, he had a normal neurological examination. These findings were confirmed by the August 2012 VA examination and the January 2013 addendum, which also found that the Veteran did not suffer from radiculopathy or any other neurological abnormalities (such as bowel or bladder problems/pathologic reflexes) were not found. Accordingly, neurological symptoms warranting a separate compensable rating are not shown. The Veteran also does not warrant a rating in excess of 10 percent prior to August 10, 2012 or in excess of 20 percent from that date, based on a rating under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes. VA examiner in August 2012 indicated that the Veteran does not have IVDS and incapacitating episodes. 38 C.F.R. § 4.71a, Code 5243. In summary, and on close review of the entire record, the Board found no other potentially applicable diagnostic code that would provide for a higher (in excess of 10 percent prior to August 10, 2012 or in excess of 20 percent from that date) schedular rating for the Veteran's service-connected lumbar strain disability. The Board concludes that a 20 percent rating is warranted for the period from August 10, 2012; and that the preponderance of the evidence is against entitlement to an increased rating for the period prior to August 10, 2012. As the preponderance of the evidence weighs against such claim (prior to August 10, 2012), the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). The Board notes that a staged rating was applied in this instance. See Hart, 21 Vet. App. 505. The Board has also considered whether the disability picture presented by the Veteran's lumbar strain disability, is such that referral for extraschedular consideration under 38 C.F.R. § 3.321 is indicated. There is no objective evidence, or allegation, that schedular criteria are inadequate. The symptoms shown are fully encompassed by the schedular criteria for the respective periods. Furthermore, nothing in the record suggests that the disability picture presented by the claimed disability is exceptional. While the Veteran has indicated that his lumbar strain disability cause some interference with his daily activities (such as being limited in his ability to stand or sit for long periods of time, lift anything and do household chores), such impairment is contemplated by the schedular criteria. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the Veteran has not alleged, nor is there anything in the record to indicate, that he is unemployed because of his lumbar strain disability, the matter of entitlement to a total disability individual unemployability rating is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the period prior to August 10, 2012, entitlement to an increased rating for lumbar strain is not warranted. To this extent, the appeal is denied. For the period from August 10, 2012, entitlement to a disability rating of 20 percent (but no higher) for lumbar strain disability is warranted. To this extent, the appeal is granted, subject to laws and regulations applicable to payment of VA monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs