Citation Nr: 1314402 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-48 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012, for degenerative joint disease of the lumbar spine (low back disability). ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded this claim in September 2012 for further development. It now returns for appellate review. During the pendency of the Board's remand, the Appeals Management Center (AMC) issued a February 2013 rating decision granting an increased rating of 20 percent for the Veteran's low back disability effective October 25, 2012, the date of a VA examination which was found by the AMC to show increased disability. Because this increased rating does not represent a grant of the maximum benefits allowable, the evaluation of the Veteran's low back disability remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). In the February 2013 rating decision, the AMC also granted a 20 percent rating effective October 25, 2012 for radiculopathy of the right lower extremity associated with the Veteran's low back disability. As the Veteran has not appealed this evaluation or the effective date assigned, the issue of a higher evaluation for radiculopathy of the right lower extremity is not before the Board. A service connection claim for a bilateral hearing loss disability was also on appeal before the Board and remanded by it in September 2012. Subsequently, service connection for bilateral hearing loss was granted in the February 2013 rating decision effective January 26, 2009, the date of the Veteran's claim. The Veteran has not appealed the degree of disability or the effective date of service connection assigned in the February 2013 rating decision. Therefore, this claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156,1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Virtual VA file shows additional VA treatment records dating from 2010 to 2013 which were considered by the AMC and have been reviewed by the Board. FINDINGS OF FACT 1. Prior to October 25, 2012, the Veteran's low back disability was manifested by degenerative joint disease with pain radiating to the right lower extremity, flexion exceeding 85 degrees, and combined range of motion of the thoracolumbar spine exceeding 235 degrees, with no additional limitations due to pain, fatigue, weakness, or incoordination with repetitive use. 2. As of October 25, 2012, the Veteran's low back disability was manifested by degenerative joint disease with pain radiating to the right lower extremity, flexion limited to 45 degrees with pain beginning at 40 degrees, and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, with no additional limitations due to pain, fatigue, weakness, or incoordination with repetitive use. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012, for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.102, 4.3, 4,40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC's) 5003, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice should generally be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, a delay in timing is "cured" and therefore harmless when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through the issuance of an SOC or SSOC) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The appeal of the evaluations assigned the Veteran's low back disability stems from a granted claim of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (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. Notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of these five elements in initial rating cases. See id. at 486; Quartuccio, 16 Vet. App. at 187. Here, prior to the initial rating decision in this matter, a February 2009 letter informed the Veteran of all five elements of service connection, including the degree of disability element, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence. Thus, the letter satisfied all notice elements required under the VCAA. See id. Moreover, in initial rating cases, where service connection has been granted and initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the "downstream elements" of the degree of disability and effective date assigned. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). In this case, neither the Veteran nor his representative has alleged such prejudice. Therefore, the duty to notify has been satisfied. See Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and VA medical records have been obtained and associated with the claims file. Private medical records identified by the Veteran have also been associated with the file to the extent possible. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the claimants disability and such is relevant to the claim, a new VA examination must be conducted. See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Here, a VA examination of the thoracolumbar spine was performed most recently in October 2012. The examination is adequate for rating purposes, as the examiner reviewed the claims file, examined the Veteran, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no significant inconsistencies or ambiguities in the examination report, and the claimant has not challenged its adequacy or thoroughness, or the competency of the examiner. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291. Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. VA examinations of the spine were also performed during the pendency of this claim in March 2009 and May 2010. The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his low back disability since he was last examined in October 2012. See 38 C.F.R. § 3.327(a). 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 Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been shown. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Procedural Due Process In September 2012, the Board remanded this claim for further development. Under Stegall v. West, 11 Vet. App. 268, 271 (1998), a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand. See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the Board's remand directives to obtain outstanding VA treatment records from the Charleston VA outpatient clinic, the Huntington VA Medical Center (VAMC), and the Beckley VMC dated since September 2010; to provide an appropriate VA spine examination responsive to the Board's remand instructions; and thereafter to readjudicate the claim have been satisfied. Accordingly, the Board is satisfied that there has been compliance with all remand directives pertaining to the issue on appeal. See id. III. Analysis The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012, for his service-connected low back disability. For the reasons that follow, the Board concludes that increased ratings are not warranted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2012). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim; this practice is known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45 (2012), consideration must also be given to weakened movement, excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). The Veteran's low back disability has been assigned 10 and 20 percent ratings under Diagnostic Code (DC) 5010, for arthritis due to trauma, and DC 5242, for degenerative arthritis of the spine. See 38 C.F.R. § 4.71a. Diagnostic Code 5010 provides that traumatic arthritis is to be rated as degenerative arthritis under DC 5003. Id. Under DC 5003, 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. See id. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. In application of Diagnostic Code 5003, the Court has held that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. With any form of arthritis, painful motion is an important factor of disability. 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code. The Court further explained that although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. The Veteran's low back disability has also been assigned ratings under DC 5242, which pertains to degenerative arthritis of the spine. 38 C.F.R. § 4.71a. Specific to disabilities of the spine, the rating schedule provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of intervertebral disc syndrome will be discussed below. Under the General Rating Formula: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned 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 evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated. See id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. In this regard, the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Turning to the evidence of record, the March 2009 VA examination report reflects that the Veteran reported "on and off" low back pain which worsened with activities and was relieved with medication. He described the pain as moderate, and stated that it lasted hours and was present on a daily basis. Prolonged sitting, standing, and waking aggravated the pain. He reported weekly flare-ups of moderate pain lasting for hours. The flare-ups were precipitated by standing and walking. They were alleviated with rest and medication. He also reported fatigue of the low back, but denied stiffness, weakness, or spasms. He denied incapacitating episodes of spine disease and did not use an assistive device for walking. He denied limitations to his ability to walk. He did not have a history of back surgery. On examination, the Veteran's posture and head position were normal and the appearance of his spine was symmetrical. He did not have an abnormal spinal curvature, including kyphosis, a list, lumbar lordosis, scoliosis, reverse lordosis, or gibbus. There was no ankylosis of the thoracolumbar spine. There was no objective evidence of spasms, atrophy, guarding, or weakness of the spine. However, there was objective evidence of pain with motion and tenderness of the spine bilaterally. There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. A motor examination, sensory examination, and reflex examination did not reveal abnormal findings. On active range of motion testing, forward flexion of the spine was from 0 to 90 degrees, extension was from 0 to 30 degrees, lateral flexion was from 0 to 30 degrees bilaterally, and lateral rotation was from 0 to 30 degrees bilaterally. There was objective evidence of pain during range of motion testing, but no additional limitations after three repetitions. An x-ray study performed on the day of the examination showed focal degenerative changes with no other significant bony abnormality. The examiner diagnosed degenerative joint disease of the lumbar spine. With regard to the functional impairment resulting from the Veteran's low back disability, the examiner noted that the Veteran was employed full time and that the duration of his current employment was from 10 to 20 years. He had not lost any time from work in the last twelve-month period. The examiner found that the Veteran's back disability did not have significant effects on his occupation and had no effects on usual daily activities. A January 2010 VA treatment record reflects a report of low back pain radiating to the right thigh and leg for over six months. A January 2010 VA MRI study showed focal degeneration and hypertrophic changes at L4-L5 and mild disc desiccation at multiple levels, with no other significant abnormality seen. At the May 2010 VA examination, the Veteran reported stiffness, weakness, decreased motion, and pain of the lumbar spine. He described the pain as aching and throbbing, and was moderate in terms of severity. He stated that the pain was constant and present on a daily basis. He further reported that the pain radiated to his right lower extremity and described this as a burning pain. He denied incapacitating episodes and stated that he did not use assistive devices or aids. On examination, the Veteran's posture and head position were normal, and his spine was symmetrical in appearance. His gait was normal. Scoliosis was observed but no other abnormal spinal curvatures. There were no objective indications of spasms, atrophy, guarding, or weakness of the spine. On range of motion testing, the Veteran had active forward flexion from 0 to 110 degrees, extension from 0 to 30 degrees, left lateral flexion from 0 to 40 degrees, right lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees bilaterally. There was no objective evidence of pain on active range of motion. There was also no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion. Electrodiagnostic testing showed late affects or residuals from right L5 and S1 radiculopathy. The findings were considered mild and there were no signs of active denervation. No other abnormalities were found based on this testing. A June 2010 VA treatment record reflects that the Veteran reported worsening back pain since the May 2010 VA examination. He stated that pain medication did not provide any relief from his symptoms. The VA treatment records show that later that month the Veteran was authorized to increase the dosage of his medication as he was not experiencing improvement with the previous dosage. A September 2010 VA treatment record reflects that the Veteran reported that his right leg gave out and he fell. He stated that he was having a lot of pain and could not sleep. In his October 2010 substantive appeal (VA Form 9), the Veteran stated that earlier that month he fell when his right leg gave way. He further stated that the sitting required in his job was painful as his legs and feet would throb with burning pain and his back hurt "all the time." A January 2011 VA physical therapy consultation shows that the Veteran was to begin a six-week program of home physical therapy exercises for his back pain. It was noted that the Veteran's low back was tender but without erythema or increased heat. His ambulation was normal. Between February 2011 and May 2012, the Veteran underwent a series of epidural steroid injections at VA to alleviate his low back pain. At the October 2012 VA examination, the Veteran reported progressively worsening back pain. He denied flare-ups in that his low back pain with tingling and numbness of the right leg was present on a daily basis, as stated in the examination report. The examiner noted that the Veteran used a cane occasionally, without further commentary. However, VA treatment records dated in November 2011 show that the Veteran was prescribed the cane following a total right knee replacement. There is no indication that the Veteran uses the cane due to his low back disability. On range of motion testing, forward flexion was to 45 degrees, with objective evidence of painful motion beginning at 40 degrees. Extension was to 15 degrees, with objective evidence of pain beginning at 15 degrees. Right and left lateral flexion were to 25 degrees, with objective evidence of pain beginning at 25 degrees. Left and right lateral rotation were to 30 degrees, with objective evidence of pain beginning at 25 degrees. The Veteran did not have additional limitations of motion on repetitive testing. The examiner noted functional impairment of the low back due to less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The Veteran had localized tenderness or pain on palpation of the low back. He also had guarding or muscle spasm of the low back severe enough to result in an abnormal gait. With regard to associated neurologic abnormalities, a straight leg raising test was positive on the right, indicating radiculopathy due to disc herniation. The test was negative on the left side. Muscle strength testing was normal on the left side but showed strength limited to active movement against gravity (3/5) on the right side. A sensory examination was normal bilaterally. The examiner found that the Veteran had moderate signs and symptoms of radiculopathy on the right side, and no radiculopathy on the left side. The examiner indicated that the Veteran did not have other neurology abnormalities or findings related to his low back disability, including bowel or bladder problems. The examiner also indicated that the Veteran did not have intervertebral disc syndrome. With regard to functional impairment, the examiner stated that the Veteran could not lift, carry, or move heavy objects and could not stand or walk for a long distance or prolonged time due to his low back disability. The examiner observed that the Veteran's low back disability had a functional impact on physical and sedentary employment. The examiner concluded that the Veteran's degenerative disc disease of the lumbar spine with right leg radiculopathy was moderate in severity. The preponderance of the evidence weighs against assignment of a rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012 under the General Rating Formula. Prior to October 25, 2012, the VA examination reports show that the Veteran had no limitation of motion of the lumbar spine, including after repetitive testing. His flexion always well exceeded 60 degrees, and indeed was normal, and his combined range of motion always well-exceeded 120 degrees, and was likewise normal. There was also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Although the May 2010 VA examiner noted scoliosis, the examination was negative for guarding or muscle spasms. There was also no evidence of ankylosis of the spine, either favorable or unfavorable. Thus, the criteria for a rating in excess of 10 percent under the General Rating Formula have not been prior to October 25, 2012. See 38 C.F.R. § 4.71a. A 20 percent rating for the Veteran's low back disability was assigned as of October 25, 2012 based on the VA examination report of that date showing forward flexion limited to 45 degrees, with pain beginning at 40 degrees, and muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. However, as there is no evidence of flexion limited to 30 degrees or more from October 25, 2012, or favorable or unfavorable ankylosis of the lumbar spine, a rating in excess of 20 percent is not warranted under the General Rating Formula. See id. Higher ratings are also not warranted under DC 5003 based on arthritis confirmed by x-ray findings of the lumbar spine. See 38 C.F.R. § 4.71a. Prior to October 25, 2012, a 10 percent rating was assigned under DC 5003 due to the Veteran's arthritis with objectively painful motion of the spine. See id.; see also Lichtenfels, 1 Vet. App. at 488 (holding that painful motion is deemed to be limited motion under DC 5003 for the purpose of awarding a compensable rating based on arthritis of the joint). There is no evidence of arthritis of the lumbar spine affecting two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Thus, a 20 percent rating is not warranted under DC 5003 prior to October 25, 2012. As of October 25, 2012, a 20 percent rating was awarded based on limitation of motion of the spine under the General Rating Formula and DC 5242. By its express terms, DC 5003 does not allow for a separate rating based on arthritis of a joint when a compensable rating has been assigned under an appropriate diagnostic code pertaining to limitation of range of motion. See id.; see also 38 C.F.R. § 4.14 (prohibiting compensation of the same manifestations of a disability under various diagnoses). Accordingly, higher or separate ratings are not warranted under DC 5003. See id. The Board has also considered whether, either prior or as of October 25, 2012, the Veteran has had additional disability of the spine beyond the recorded range of motion measurements, to include due to flare-ups, weakened movement, painful movement, excess fatigability, or incoordination, such as after repetitive use of the spine. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 206-07. The 10 percent and 20 percent ratings currently assigned already compensate the Veteran for functional impairment of the spine. In this regard, his range of motion measurements do not exceed the criteria for the 10 percent and 20 percent ratings assigned under the General Rating Formula even after repeated use. Rather, his range of motion measurements have consistently remained the same after three repetitions. Likewise, the point where objective pain begins has remained the same. The objective findings recorded in the three VA examination reports show that the Veteran's painful and/or weakened motion of the lumbar spine does not affect its normal working movements beyond the limitations already reflected in the range of motion measurements. See Mitchell, 25 Vet. App. at 42-43. Moreover, while the Veteran has reported occasional flare-ups of low back pain, the evidence does not show that his overall disability is more severe than the 10 percent and 20 percent ratings currently assigned based on the clinical findings set forth in the VA examination reports. Accordingly, higher ratings are not warranted under the DeLuca criteria. See id. In short, the Veteran's low back disability more nearly approximates the criteria for a 10 percent rating prior to October 25, 2012, and a 20 percent rating as of October 25, 2012, for the reasons discussed above. See 38 C.F.R. § 4.7. The Board has considered the application of other diagnostic codes. Under DC 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2012). 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a (DC 5243). An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a Note (1). Here, the Veteran has not stated and there is no evidence showing that he has been prescribed bed rest by a physician due to periods of acute signs and symptoms of low back pathology during the pendency of this claim. Indeed, the October 2012 VA examiner found that the Veteran did not have intervertebral disc syndrome, and such a diagnosis is not otherwise reflected in the VA examination reports and treatment records. Thus, a higher rating is not warranted under DC 5243. The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran has not appealed the 10 percent and 20 percent ratings assigned his radiculopathy of the right lower extremity. Moreover, the October 2012 VA examination report shows that the Veteran does not have radiculopathy of the left lower extremity or any other associated neurologic abnormalities, including bladder problems. The evidence of record does not otherwise suggest that such abnormalities are present. Accordingly, further consideration of associated neurologic abnormalities is not warranted. The Board has considered the Veteran's contention that his low back disability warrants the assignment of ratings higher than the evaluations currently assigned. His report of chronic low back pain is both competent and credible, and supported by the treatment records showing that he has undergone a series of epidural steroid injections and home physical therapy exercises. However, the preponderance of the evidence, including the Veteran's statements, does not show that VA's schedular criteria for higher ratings have been satisfied, for the reasons discussed above. Indeed, as already noted, the schedular criteria already take into account the presence of pain. See General Rating Formula, 38 C.F.R. § 4.71a; see also 68 Fed. Reg. 51, 454-55. Because the preponderance of the evidence weighs against entitlement to a rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012 for the Veteran's low back disability, further staged ratings are not appropriate for time frame on appeal. See Fenderson, 12 Vet. App. at 126. The Board has considered whether to the address the issue of a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2012). In Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. Here, the Veteran has not stated and the evidence of record does not otherwise suggest that his low back disability is sufficiently incapacitating as to prevented him from obtaining or maintaining substantially gainful employment. Rather, the evidence shows that he has continued to work full time throughout this claim. Thus, the issue of entitlement to TDIU has not been raised. See id. The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Referral for extraschedular consideration is not warranted. The Veteran's low back disability is manifested by symptoms and functional impairment expressly addressed by the rating criteria, including arthritis and disc disease, chronic pain, abnormal spinal contour, spasms, and limited motion. See 38 C.F.R. § 4.71a, General Rating Formula (providing, in pertinent part, for ratings based on limited motion and spasms, irrespective of the presence of pain and whether or not it radiates); see also 38 C.F.R. §§ 4.40, 4.45, and 4.59 (providing for at least a compensable rating for painful motion, as well as excess fatigability, weakness, and incoordination). The Veteran does not have symptoms associated with his low back disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. The Veteran's associated radiculopathy of the right lower extremity has also been compensated under the schedular criteria. See 38 C.F.R. § 4.124a, DC 8520 (2012). With regard to the Veteran's functional impairment, including reported difficulties with prolonged standing and walking, bending, and lifting heavy objects, these limitations are expected concomitants of a low back disability and thus fall within the province of the schedular criteria. The schedular criteria do not directly address functional impairment apart from limited motion and an abnormal gait because they are predicated on objective clinical findings. As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Rather, the disability must be "exceptional" or "unusual." The Veteran has not described any functional impairment beyond what would reasonably be contemplated by the rating criteria. For example, limited and painful motion as well as back spasms would be expected to cause difficulties with walking, bending, and lifting. Thus, the rating criteria reasonably describe the Veteran's low back disability and consequent functional limitations. There is also no evidence that the Veteran has missed time from work or been hospitalized for his low back disability. Accordingly, a comparison of the Veteran's low back disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Nevertheless, the Board notes that such factors have not been shown. Therefore referral for extraschedular consideration is not warranted. See id. Accordingly, the preponderance of the evidence is against the assignment of higher ratings for the Veteran's low back disability. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012, for the Veteran's low back disability is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an initial rating in excess of 10 percent prior to October 25, 2012, and in excess of 20 percent as of October 25, 2012, for degenerative joint disease of the lumbar spine is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs