Citation Nr: 1313550 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 07-16 277 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to higher ratings following the award of service connection for residuals of a low back injury with L-1 compression fracture and degenerative disc and joint disease, rated as 10 percent disabling from July 16, 2005, and as 20 percent disabling from June 20, 2012. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1996 to July 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2006 rating decision in which the RO awarded service connection and assigned an initial 10 percent rating for residuals of a low back injury with a compression fracture and degenerative disc and joint disease, effective July 16, 2005. In March 2006, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in April 2007 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2007. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Pittsburgh, Pennsylvania, which has certified the appeal to the Board. As the Veteran disagreed with the initial rating assigned following the award of service connection, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claim for increased ratings for already service-connected disability). In February 2010, the Board, inter alia, remanded the claim for a higher, initial rating to the RO for further action, to include the additional development of the evidence. On remand, the RO, inter alia, assigned a 20 percent rating for the low back disability, effective June 20, 2012, but continued to deny a rating in excess of 10 percent prior to that date. See October 2012 rating decision and supplemental statement of the case (SSOC)). Thereafter, the appeal (now recharacterized to reflect the ratings at each stage, as set forth on the title page) was returned to the Board for further appellate consideration. As a final preliminary matter, in November 2012, after the issuance of the October 2012 SSOC, the Veteran submitted additional argument in support of his appeal without a waiver of initial RO consideration. However, such a waiver is not required as this argument was duplicative of argument that had been previously submitted. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. For the period prior to June 20, 2012, the Veteran's residuals of a low back injury resulted in reduced range of motion that included forward thoracolumbar flexion to no less than 75 degrees and a combined range of motion of the thoracolumbar of no less than 220 degrees, but was not productive of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour, ankylosis of the spine, any separately ratable neurological manifestation(s) other than left leg radiculopathy (for which a separate rating has been assigned), or any period(s) of incapacitation. 3. Since June 20, 2012, the Veteran's residuals of a low back injury has resulted in reduced range of motion that includes forward thoracolumbar flexion to no less than 50 degrees and a combined range of motion of the thoracolumbar of no less than 130 degrees, but has not been productive of ankylosis of the spine; any separately ratable neurological manifestation(s) other than left leg radiculopathy (for which a separate rating has been assigned), or any period(s) of incapacitation. 4. At no point pertinent to this appeal has the Veteran's residuals of a low back injury been shown to be so exceptional or unusual as to render inadequate the schedular criteria for rating the disability. CONCLUSION OF LAW The criteria for an for an initial rating in excess of 10 percent for residuals of a low back injury with a L-1 compression fracture and degenerative disc and joint disease, or in excess of 20 percent from June 20, 2012 are not 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, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing 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 under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice 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). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A September 2005 pre-rating letter provided pertinent notice to the Veteran in connection with what was then a claim for service connection for a herniated disc at L5-S1. That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. After the award of service connection, and the Veteran's disagreement with the initial rating assigned, the April 2007 SOC set forth the criteria for higher ratings for lumbar spine disability, to include the General Formula for Diseases and Injuries of the Spine (the timing and form of which suffices for Dingess/Hartman). An October 2008 letter also provided the relevant rating criteria. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records and reports of VA examinations. In an April 2010 letter, the RO requested that the Veteran complete an appropriate authorization form for each private treatment provider, including the Virginia Pain Specialists, as instructed by the Board in its February 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Through this action, private medical records have been associated with the claims file. Also of record and considered in connection with the appeal are various written statements provided by the Veteran on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim for higher rating, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made 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. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. As the RO has already awarded staged ratings for the lumbar spine disability under consideration, the Board will consider the propriety of the rating at each stage, as well as whether any further staged rating is required. At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service-connected residuals of a low back injury with a L-1 compression fracture and degenerative disc and joint disease is rated based on consideration of the rating criteria for vertebral fracture (Diagnostic Code 5235) and traumatic arthritis (Diagnostic Code 5010). See 38 C.F.R. § 4.27. Under Diagnostic Code 5010, traumatic arthritis is rated under Diagnostic Code 5003, for degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. A General Rating Formula for Diseases and Injuries of the Spine sets forth the criteria for rating spine disabilities on the basis of limitation of motion and other factors. Under the formula, a 10 percent is warranted if forward flexion of the thoracolumbar spine was greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees or muscle spasms, guarding or localized tenderness that did not result in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees or that muscle spasms or guarding were 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is 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 ankylosis of the entire spine. The noted criteria apply with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease. Alternatively, the Board has also considered the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under that formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). The relevant evidence in the record includes the Veteran's VA and private treatment records, as well as reports of VA examinations conducted in December 2005, April 2006, September 2009 and June 2012. For the period prior to June 20, 2012, the record establishes that the Veteran's thoracolumbar flexion was limited to 75 degrees and that the combined thoracolumbar range of motion was limited to 220 degrees, both at worst, without objective evidence of muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour on examination. For the period beginning on June 20, 2012, the record establishes that the Veteran's thoracolumbar flexion was limited to 50 degrees and that the combined thoracolumbar range of motion was limited to 130 degrees, both at worst, without ankylosis. Collectively, these symptoms have resulted in no more impairment than that contemplated in the assigned 10 percent rating prior to June 20, 2012, and the assigned 20 percent rating from that date. During a December 2005 VA examination, the Veteran reported chronic low back pain in the middle of his back that did not keep him from pursuing his job. He was able to walk unrestricted for several miles at his own pace and lift items up to 30 pounds. Flare-ups, incapacitating episodes or the use of a brace, crutches or a cane were denied. Physical examination in December 2005 found the Veteran's back to be normal with a slight diminution in lumbar lordosis without gibbus, scoliosis or paravertebral spasms. He was able to walk without a limp, on his tiptoes and on his heels. Forward flexion was measured as from zero degrees to 90 degrees, extension was from zero degrees to 20 degrees, bilateral lateral flexion was from zero degrees to 25 degrees and bilateral lateral rotation was from zero degrees to 30 degrees. Pain was noted throughout extension, lateral flexion and lateral rotation but repetitive motion did not result in additional limitation of motion. A contemporaneous X-ray revealed mild compression fracture deformities compatible with trauma history and mild disc degeneration L5-S1. In a March 2006 NOD, the Veteran wrote that he had been taking medication prescribed by his doctor during the VA examination and therefore did not feel his usual pain level. He reporting having muscle spasms in his lower back on a constant basis, that his sided motion was less than 30 degrees and that he had no rotation ability in his lower back with a great deal of pain. In a May 2006 statement, the Veteran's former supervisor wrote that that the Veteran's behavior and way of life changed as a result of his back injury. In an April 2006 VA examination, the Veteran reported back stiffness, giving out with minor activity and constant pain. This pain could be elicited by physical activity and was relieved by medication. Reported functional impairments included an inability to run without pain, an inability to twist the lower back and an inability to lift anything heavy. Incapacitation was denied. Physical examination in April 2006 revealed a muscle spasm in the left paraspinal thoracolumbar region as well as tenderness in the left paraspinal thoracolumbo sacral region. Spinal curvature, posture and gait were found to be within normal limits. Forward flexion was to 90 degrees with pain beginning at 80 degrees, extension was to 30 degrees with pain beginning at 20 degrees, right lateral flexion was to 30 degrees with pain beginning at 20 degrees, left lateral flexion was to 30 degrees with pain beginning at 10 degrees and bilateral rotation was to 30 degrees with pain beginning at 20 degrees. Range of motion on repetitive motion testing was "limited by 20-30 degrees" due to pain, fatigue, weakness and lack of endurance; specific range of motion measurements were not provided. No ankylosis was found. A July 2005 private treatment note indicates that the Veteran denied bowel or bladder abnormalities. A March 2008 VA lumbar Magnetic Resonance Imaging (MRI) scan revealed a small focal left paramedian L5-S1 herniated nucleus pulposus to the left adjacent to the existing left S1 root. An April 2008 private treatment note reflects the Veteran's reports of lumbar pain that he rated as a seven and increased to a 10 in the mornings. This pain was aggravated by sitting, standing and walking and was relieved by lying down. In addition, he reported difficulty holding his bowel movements but denied bladder, urinary tract or erectile dysfunction. Physical examination revealed paraspinous muscle tenderness off the midline bilaterally in a symmetrical distribution as well as a mild curvature in the lumbar spine. Flexion was measured to 75 degrees, extension was to five degrees due to pain, right lateral flexion was to 15 degrees due to pain and left lateral flexion was to 30 degrees due to pain. The Veteran's gait was noted to be antalgic trace. In a September 2009 VA examination, the Veteran complained of constant back pain that averaged a four in intensity with a range between two and eight or nine. Physical examination was negative for percussion pain over the spinous process or muscle hardness of the erector spine but revealed a flattening of the lumbar spine lordosis in the sagittal plane. Seated rotation range of motion was measured to be "25-0-10" degrees with pain in the left lumbosacral region at the end of range of motion. Side bend range of motion was measured to be "15-0-15" degrees with pain in the left lumbosacral region at the end of range of motion. A June 20, 2012 VA back Disability Benefits Questionnaire (DBQ) notes that the Veteran had left scoliosis that was caused by his fracture as well as localized tenderness or pain to palpation of joints. Forward flexion was to 50 degrees with pain at 45 degrees, extension was to five degrees with pain at five degrees, bilateral lateral flexion was to 20 degrees with pain at 20 degrees, right lateral rotation was to 20 degrees with pain at 20 degrees and left lateral rotation was to 15 degrees with pain at 15 degrees. Repetitive range of motion testing reduced bilateral lateral flexion by five degrees and right lateral rotation by five degrees. No neurologic abnormalities such as bowel or bladder problems or right nerve root involvement were found. The Veteran was noted to suffer from IVDS and that the duration of all incapacitating episodes over the past 12 months totaled at least one week but less than two weeks. As indicated above, thoracolumbar range of motion testing conducted has demonstrated some loss of thoracolumbar motion but has not reflected forward flexion that is limited to 60 degrees or less or combined thoracolumbar spine motion of 120 degrees or less, as required for the next higher rating under the General Rating Formula for the period prior to June 20, 2012. As noted above, range of motion testing conducted in the December 2005 and April 2006 VA examinations revealed thoracolumbar flexion of 90 degrees while an April 2008 private treatment note indicated that such thoracolumbar flexion was limited to 75 degrees. Such range of motion testing conducted during these VA examinations revealed that his combined thoracolumbar motion was measured to be 220 degrees and 240 degrees, respectively; such combined thoracolumbar motion could not be calculated based on the results in the April 2008 private treatment note as bilateral rotation testing was not conducted. As indicated, VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the General Rating Formula for the spine. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during his December 2005 VA examination, pain was noted throughout extension, lateral flexion and lateral rotation. In addition, the April 2006 VA examiner determined that joint function was additionally limited by "20-30 degrees" due to pain, fatigue, weakness, or lack of endurance but did not detail specific range of motion. Nonetheless, given the extent of thoracolumbar flexion demonstrated by the Veteran at his VA examinations, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 60 degrees or less or loss of combined thoracolumbar motion to 120 degrees or less, even after taking reported pain and fatigue into consideration. Moreover, to the extent that pain, fatigue, weakness, or lack of endurance was reported by the Veteran after repetitive motion at his VA examinations, the December 2005 VA examiner noted that the Veteran did not demonstrate any further loss of motion or function due to those symptoms. In addition, while the April 2006 VA examiner noted that the Veteran's repetitive range of motion was limited by "20-30 degrees," he did not indicate whether this reduction was to the combined range of motion or to each specific range of motion; such reports therefore cannot serve to substantiate a higher rating. The Board also notes that a higher rating based upon muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour is not warranted. In this regard, the April 2006 VA examination found muscle spasms but found the Veteran's spinal curvature and gait to be within normal limits. In contrast, mild curvature of the spine without spasms was found in April 2008 and flattening of the spine without spasms was found in September 2008. For the period beginning on June 20, 2012, thoracolumbar range of motion testing conducted has revealed some loss of thoracolumbar motion but has not reflected forward flexion that is limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, as required for the next higher rating under the General Rating Formula. As noted above, range of motion testing conducted on June 20, 2012 revealed thoracolumbar flexion of 50 degrees while combined thoracolumbar motion was measured to be 130 degrees. For this period, the Board has also considered functional loss due to pain and other factors, to include with repeated use or during flare-ups, in conjunction with criteria under the General Spine Rating Formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during his June 2012 VA examination, repetitive motion reduced his bilateral lateral flexion by five degrees and bilateral lateral rotation by five degrees. Nonetheless, given the extent of thoracolumbar flexion demonstrated by the Veteran at his VA examination, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 30 degrees even after taking the reported pain into consideration. Accordingly, even after taking the factors identified in DeLuca into consideration, the Board finds that no any disability rating in excess of 10 percent prior to June 20, 2012 or in excess and 20 percent from that date cannot be granted, under the General Rating Formula, on the basis of restricted thoracolumbar motion. Moreover, the post-service radiological lumbar spine studies, treatment notes and VA examination reports simply do not reflect objective findings of ankylosis in the spine, or any suggestion that the Veteran effectively experiences ankylosis of the spine. The Board also has considered whether combining ratings for orthopedic and neurological manifestations of lumbar spine disability would result in a higher rating, pursuant to Note (1) of the General Rating Formula. However, there is no evidence of any separately ratable neurological manifestation(s) other than the left leg radiculopathy for which a separate rating has been assigned-10 percent from July 16, 2005, and 20 percent from June 20, 2012. The Veteran has consistently denied bladder impairments and none were found on examination. In addition, although the Veteran reported difficulty holding his bowels in April 2008, he subsequently denied such impairment and it is not clear that the Veteran was attributing these symptoms to his service-connected low back disability. In addition, no objective evidence of right leg radiculopathy has been found on examination. As such, Note 1 provides no basis for any higher rating at any point pertinent to this appeal. The Board further finds that the Formula for Rating IVDS likewise provides no basis for assignment of any higher rating. Although disc problems have been noted in the post-service clinical evidence, the Veteran's residuals of a low back injury have not been shown to involve IVDS with incapacitating episodes. In this regard, the treatment records and VA examinations reflect some physical limitations but do not indicate that bed rest was medically prescribed at any time pertinent to this appeal. Although the June 2012 VA examiner suggested that the Veteran had incapacitating episodes lasting at least one week but less than less two weeks in the past 12 months, the clinical evidence of record does not establish that the Veteran had been medically prescribed bed rest. Similarly, the Veteran denied incapacitating episodes during his December 2005 and April 2006 VA examinations. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The above-noted determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the April 2007 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). 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 this 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 rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that, although a claim for a total disability rating based on individual unemployability (TDIU) may be raised in the record as a component of a claim for higher rating (see e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009)), here, there is no indication that the Veteran is unemployed, nor is there evidence or argument that the Veteran's residuals of a low back injury renders him unemployable as he has reported working as a contractor throughout the course of the appeal. As such, a claim for a TDIU due to residuals of a low back injury has not reasonably been raised, and need not be addressed. For all the foregoing reasons, the Board finds that, there is no basis for any further staged rating for the Veteran's residuals of a low back injury, pursuant to Fenderson, and that a higher rating at each stage must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the disability on appeal, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for higher ratings following the award of service connection for residuals of a low back injury with L-1 compression fracture and degenerative disc and joint disease, rated as 10 percent disabling from July 16, 2005, and as 20 percent disabling from June 20, 2012, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs