Citation Nr: 1313528 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 06-37 213A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative changes of the thoracic spine. 2. Entitlement to an initial compensable evaluation for radiculopathy of the right lower extremity. 3. Entitlement to an initial compensable evaluation for radiculopathy of the left lower extremity. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active duty service in the United States Air Force from September 1985 to September 2005. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in part, granted service connection for degenerative changes of the thoracic spine and assigned a non-compensable evaluation effective October 1, 2005. In November 2008, December 2010, and May 2011, the Board remanded this matter for further development, and the case has been returned to the Board for appellate consideration. During the pendency of this appeal, in an August 2012 rating decision, the Appeals Management Center (AMC) increased the disability evaluation for the thoracic spine to 10 percent disabling effective the date of service connection. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). In February 2011, the Veteran was afforded a videoconference hearing before an Acting Veterans Law Judge who is no longer employed by the Board. In a February 2013 letter, the Veteran was notified that the Acting Veterans Law Judge who conducted his February 2011 hearing was no longer employed by the Board. He was given the option of having another hearing before a different Veterans Law Judge and also notified that if he did not respond within 30 days from the date of the letter that the Board will assume he did not want another hearing. To date, the Veteran has not responded and the Board will proceed accordingly. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. The issues of initial compensable evaluations for radiculopathy of the right and left lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's degenerative changes of the thoracic spine has been manifested by limitation of flexion to 60 degrees when considering pain; and has not been shown to have a combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, abnormal kyphosis, or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for service-connected degenerative changes of the thoracic spine have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As previously noted, the Board remanded this case for further development on several occasions. In November 2008, the Board instructed the AMC/RO to obtain additional treatment records identified by the Veteran, provide the Veteran an updated examination for his spine, and to readjudicate his claim. Subsequently, outstanding treatment records were associated with the claims folder, the Veteran was afforded an examination for his spine in December 2009, and his claim was readjudicated in a September 2010 supplemental statement of the case (SSOC). In December 2010, the Board remanded the matter to schedule the Veteran for a videoconference hearing before a Veterans Law Judge pursuant to his request. Thereafter, the Veteran provided testimony in a videoconference before an Acting Veterans Law Judge in February 2011. Most recently, the Board remanded this matter in May 2011 to obtain outstanding VA Connecticut Healthcare system records, send the Veteran a letter requesting that he provide sufficient information to obtain any pertinent additional evidence, afford him neurological and orthopedic examinations, and to readjudicate his claim. Pursuant to the Board's remand, outstanding VA treatment records were obtained. Additionally, in June 2011 the AMC sent the Veteran a letter requesting that he identify outstanding treatment providers. Pursuant to the application identifying outstanding records from O.Y., M.D. for July 2011, the AMC attempted to obtain these records. In a June 2012 statement, Dr. Y's office indicated that there were no records for the period July 2011. The Veteran was also afforded examinations for his orthopedic and neurological complaints in September 2011, and his claim was readjudicated in a July 2012 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. In this case, the Veteran's claim for service connection was received in April 2005, prior to separation from service, as part of the Benefits Delivery at Discharge (BDD) Program. At the time the Veteran filed his claim, he signed a "NOTICE ACKNOWLEDGEMENT AND RESPONSE FOR THE BENEFITS DELIVERY AT DISCHARGE PROGRAM" indicating that he had no other information or evidence to give VA to substantiate his claim. This notice advised the Veteran of the information and evidence necessary to substantiate a claim for service connection, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. Thereafter, the claim was reviewed and the RO issued the February 2006 rating decision. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, in February 2008 and December 2008 letters, the Veteran was notified of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in various SSOC's, most recently in July 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). The Board notes that the claim for higher initial ratings for the thoracic spine is a downstream issue, which was initiated by a notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Hence, there is no duty to provide additional notice in regard to this claim. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal. The reports of these examination reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate and thorough evaluation of the Veteran, rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disability since he was examined in September 2011. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board, therefore, concludes that this examination report, as well as the others, is adequate for purposes of rendering a decision in the instant appeal and VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4), 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, as noted above, the Veteran presented testimony in a videoconference hearing before an Acting Veterans Law Judge. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the February 2011 hearing before the Board. Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate this claim for a higher rating for the spine disability. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that his service-connected degenerative changes of the thoracic spine is more disabling than contemplated by the current 10 percent disability evaluation. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will thus consider entitlement to "staged ratings" in this case. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon 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 the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2011). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (2011). For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2012). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The General Rating Formula for Diseases and 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 as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine 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 (20 percent); For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237 (lumbosacral strain), 5242 (degenerative arthritis of the spine) (2012). Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The spine codes permit evaluation under either 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 results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The following ratings apply to intervertebral disc syndrome based on incapacitating episodes: Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent); Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. See also 38 C.F.R. § 4.71a, Plate V (2012). In this case, the Board finds that a higher evaluation is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 20 percent evaluation for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). There is no evidence in the record of any incapacitating episodes. In fact, during the December 2009 examination, the Veteran denied any incapacitating episodes. Likewise, at the September 2011 examination, he denied being on complete bed rest or losing time form work. Therefore, there is no evidence of any incapacitating episodes as contemplated by the rating criteria, and certainly none lasting at least two weeks. See id. As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic and neurological manifestations. Turning first to the orthopedic manifestations, the Board notes that for a 20 percent evaluation, the Veteran must demonstrate 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). The June 2005 VA examination report noted that range of motion of the lumbar spine was 0 to 90 degrees, lateral flexion was 0 to 30 degrees bilaterally, and extension was 0 to 35 degrees bilaterally. On VA examination in December 2009, the Veteran demonstrated the following thoracolumbar spine range of motion: forward flexion from 0 to 90 degrees with pain at 60 to 90 degrees, extension from 0 to 30 degrees with pain at 10 to 30 degrees, bilateral lateral flexion from 0 to 30 with pain at 20 to 30 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. The examiner observed that the Veteran did not ambulate with an assistive device, had a normal upright posture and gait, normal position of head and curvatures of the spine, and symmetry in appearance. The examiner indicated that while there was no muscle spasm, there was guarding and localized tenderness with preserved spinal contour and normal gait. Additionally, there was no muscle spasm or guarding enough severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There were also no postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of the back. The September 2011 VA examination report showed the following thoracolumbar spine range of motion: forward flexion from 0 to 90 degrees with pain at 70 to 90 degrees, extension from 0 to 30 degrees with pain at 10 to 30 degrees, bilateral lateral flexion from 0 to 30 with pain at 20 to 30 degrees, and bilateral lateral rotation to 30 degrees with pain at 30 degrees. There was no spasm, weakness, atrophy, or guarding, but there was point tenderness at the right paraspinal area of T8-10, right L1-4, and left sacroiliac joint. Additionally, spinal contour was preserved and the Veteran demonstrated a normal gait. Additionally, there was no muscle spasm or guarding enough severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There were also no postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of the back. Additionally, the record includes treatment records showing that the Veteran had full range of motion of the lumbar spine which was also nontender. See e.g. April 2010 and May 2010 private treatment records. Also, while VA treatment records dated in May 2010 and November 2010 showed that the Veteran had chronic spine pain (rated as a 4 out of 10) and limited range of motion, no actual measurements were recorded. Based on the evidence, the Board finds that a higher evaluation is not warranted for the Veteran's orthopedic manifestations. Flexion has been limited at worst to 60 degrees after taking into consideration any limitation due to pain. Furthermore, the combined range of motion of the thoracolumbar spine was greater than 120 degrees when actual measurements were taken, and the medical evidence specifically reflects that there was no 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, the criteria for a higher 20 percent evaluation have not been met. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Consideration has also been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Both the December 2009 and September 2011 VA reports showed that upon repetitive use, there was no pain, fatigue, weakness, lack of endurance, or incoordination. Additionally, there was no additional loss of range of motion after repetitive motion. Therefore, the Board concludes that an evaluation in excess of 10 percent for the Veteran's spine disability is not warranted. As to the neurological manifestations, the Board notes that in the August 2012 rating decision, the AMC granted separate evaluations for radiculopathy of the right and lower extremities and assigned non-compensable evaluations for each side. These issues will be further discussed in the Remand portion of this decision. In summary, the Board finds that an evaluation in excess of the current 10 percent rating is not warranted for the Veteran's service-connected thoracic spine disability. The Veteran's symptoms have remained constant and as such staged ratings are not warranted during this period. See supra Fenderson v. West, 12 Vet. App. 119 (1999). Other Considerations In reaching the above conclusion with respect to the Veteran's increased rating claim, the Board has not overlooked the Veteran's statements with regard to the severity of his spine disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain, and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Any lay evidence in this case was provided during the Veteran's hearings, VA examinations, and at clinical visits. The Board has considered the Veteran's testimony and reports along with findings from the medical evidence. The Board notes the pertinent rating criteria contain diagnostic criteria that requires medical expertise (such as measuring range of motion, determining whether symptoms are sufficient enough to warrant the prescription of bed rest, etc.) to evaluate the Veteran's disability. The record does not reflect that the Veteran is competent to make such medical opinions. Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required any hospitalizations for his disability. Additionally, the Board finds that the manifestations of his disability are not in excess of those contemplated by the schedular criteria. The service-connected spine is limited by motion and pain. As discussed in the preceding section, these symptoms are contemplated by the rating criteria. See id. In sum, there is no indication that the average industrial impairment from the disability would be in excess of those contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his disability renders him totally unemployable. Indeed, the evidence clearly reflects that the Veteran is employed full-time and as of September 2011 had not missed any work in the past couple of months. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative changes of the thoracic spine is denied. REMAND As noted above, in the August 2012 rating decision the AMC also granted service connection for left and right lower extremity radiculopathy and assigned a non-compensable evaluation for each side. In considering whether a higher evaluation is warranted for degenerative changes of the thoracic spine, the Board must consider both the orthopedic and neurological manifestations of the disability. The Board has determined that a higher evaluation is not warranted based on the orthopedic manifestations. As to the neurological manifestations (i.e. left and right lower extremity radiculopathy), the Board notes that the statement of the case (SOC) and subsequent supplemental statements of the case (SSOC's) issued with regard to the increased rating claim for degenerative changes of the thoracic spine did not address entitlement to a higher rating for neurological manifestations. Therefore, on remand, such should be accomplished. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's increased rating claims for left and right lower extremity radiculopathy. If the claims remain denied, the RO should issue an appropriate SSOC and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs