Citation Nr: 1314537 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-08 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating higher than 40 percent for degenerative disc disease (DDD) of the lumbar spine at L2-3 and L4-5 (lumbar spine or low back disability). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 1992 and from July 1994 to April 1996. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claim, the Veteran testified at a videoconference hearing in June 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. The Board remanded this claim in September 2012 for further development, to include obtaining the Veteran's Social Security Administration (SSA) records and affording him another VA compensation examination of his lumbar spine to reassess the severity of his low back disability. That additional development of the claim since has been completed, as discussed in more detail below, and the claim is again before the Board for further appellate review. As also noted in the Board's September 2012 remand, however, the Veteran has raised the additional issue of whether there is new and material evidence to warrant reopening his previously denied claim for service connection for a cervical spine disorder, including as secondary to his low back disability. This additional claim still has not been initially addressed by the RO as the Agency of Original Jurisdiction (AOJ), even since the Board's remand of the claim concerning the low back disability. Therefore, the Board still does not have jurisdiction over this additional claim so is again referring it to the RO via the Appeals Management Center (AMC) for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). FINDING OF FACT The Veteran's low back disability is manifested by chronic pain and consequent limitation of motion, but there is no competent and credible evidence of ankylosis of this segment of his spine, the thoracic and lumbar (thoracolumbar) segment, or of his entire spine when also considering the adjacent cervical segment, or of associated neurologic impairment or incapacitating episodes - meaning bed rest prescribed by a physician. CONCLUSION OF LAW The criteria have not been met at any point during the pendency of this claim for a rating higher than 40 percent for this low back disability. 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 (DCs) 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this 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 and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses only 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, so both the medical and lay evidence, to determine its probative value, accounting for evidence that 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. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), provides that VA has duties to notify and assist claimants in substantiating claims for VA benefits. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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 not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice ideally should be provided prior to an initial unfavorable decision on a claim by the RO as the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, even if notice was not provided prior to initially adjudicating a claim or, if provided, it was inadequate or incomplete, this timing error in the provision of the notice is rectified ("cured") and, therefore, harmless when a fully compliant VCAA notification letter is provided followed by readjudication of the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, inasmuch as the claimant still has meaningful opportunity to submit additional evidence in response to the notice and participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In claims for increased ratings for disabilities that already have been determined service connected in years past, the Court has held that in order to satisfy the first notice element in an increased-rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vazquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vazquez-Flores II). Further, the claimant must be notified that a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Id. Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. Except when VCAA notice as to how to substantiate an increased-rating claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided. See Vazquez-Flores, 24 Vet. App. at 106-07. During the pendency of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that, for increased-rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103(a) need not be "veteran specific," and therefore VA is not required to notify the Veteran of the rating criteria applicable to the disability at issue or to inform him that he may submit evidence of the effect of his disability on daily life. See Vazquez-Flores/Wilson, 580 F.3d at 1280-81. Here, prior to the initial rating decision in this matter, a June 2007 letter satisfied all notice elements under the VCAA. It informed the Veteran of how VA generally evaluates service-connected disorders, provided examples of the types of evidence the Veteran could submit in support of his claim, and notified him of his and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf. Further, a January 2009 letter notified the Veteran of the specific rating criteria applicable to disabilities of the spine, and informed him that VA considers the impact of the disability on daily life. This letter was followed by readjudication of the Veteran's claim in a March 2009 statement of the case (SOC). Moreover, as noted above, such specific notice is not required. See id. Accordingly, the duty to notify has been satisfied. 3See 8 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores, 24 Vet. App. at 97-103; Quartuccio, 16 Vet. App. 183. 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, VA medical records, and Social Security Administration (SSA) records have been obtained and associated with the claims file. Private medical records identified by the Veteran have also been received. The Appeals Management Center (AMC) also requested the Veteran's Vocational Rehabilitation and Counseling folder. However, the RO provided a negative response in October 2012, stating that its records did not show that the Veteran had participated in this program. The Veteran was notified of the RO's response in a November 2012 letter and provided an opportunity to send these records himself if they were in his possession. See 38 C.F.R. § 3.159(e) (describing VA's duty to notify the claimant of inability to obtain records). He did not respond to this letter. Accordingly, a December 2012 memorandum was issued for the file making a formal finding of unavailability of the Veteran's vocational rehabilitation records which sets forth the efforts made to obtain them, finds that such efforts were exhaustive, and concludes that further attempts would be futile. Based on the AMC's unsuccessful attempts to obtain these records and the negative response received, further efforts would be unavailing and thus are not warranted. See 38 C.F.R. § 3.159(c)(2) (VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those would be futile; cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or that the custodian does not have them). 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. In this regard, he was sent a letter in October 2012 asking him to identify additional treatment for his back disorder, and either to provide VA with sufficient information and authorization to request records of such treatment on his behalf, or to submit these records himself. However, he did not respond to this letter. 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 claimant's 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 apparent inconsistencies or ambiguities in the examination report, and the claimant has not specifically 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 provided during the pendency of this claim in January 2010 and July 2007 (performed by QTC Medical Services on a contract basis). 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 A. Compliance with the Board's Remand Directives As noted above, the Board remanded this claim in September 2012 for further development. 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. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries, 22 Vet. App. at 105 (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 make appropriate efforts to obtain the Veteran's Vocational and Rehabilitation Counseling records, to request him to identify any additional pertinent treatment records, to provide an appropriate VA spine examination responsive to the Board's remand instructions; and thereafter to readjudicate the claim, have been satisfied, as shown in the above discussion with regard to VA's duties under the VCAA. Accordingly, the Board is satisfied that there has been compliance with all of its remand directives. See id. B. Compliance with Bryant The Veteran testified at a June 2012 Board hearing before the undersigned. Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim). Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Importantly, the Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. Here, the outstanding issue is whether the criteria have been met for a rating in excess of 40 percent for the Veteran's low back disability. At the hearing, the undersigned specifically explained to the Veteran that in order to establish entitlement to a rating in excess of 40 percent, there must be evidence of ankylosis of the lumbar spine and/or incapacitating episodes requiring bed rest prescribed by a physician. See Hearing Transcript, pgs. 10-11. The undersigned further explained VA's definitions of ankylosis and incapacitating episodes for the purpose of evaluating disorders of the spine, and suggested that the Veteran submit medical records showing either ankylosis or prescribed bed rest. See id. The undersigned clarified for the Veteran that, with regard to evaluating disabilities of the spine under the rating schedule, it is not necessarily sufficient merely to claim having an incapacitating episode if there is no evidence that bed rest was actually prescribed by a physician, as required under the rating criteria. See id. Finally, the undersigned suggested that the Veteran submit records of recent treatment for his low back at a private facility that he referred to at the hearing. See id., pg. 9. Accordingly, the hearing officer's duties under section 3.103(c)(2) were satisfied at the June 2012 hearing. Moreover, any deficiencies in the June 2012 Board hearing under section 3.103(c)(2) were not prejudicial, and no such deficiencies have been shown or alleged. Specifically, VA has otherwise developed this claim, including obtaining records on the Veteran's behalf and providing a VA examination which specifically addresses the outstanding issues in this case, as discussed above with regard to VA's duty to assist under the VCAA. Moreover, the Veteran did not raise any new issues relevant to his claim for an increased rating at the hearing, and there is also no indication of any outstanding evidence he might submit. See id. at 499. As noted above, the Veteran did not respond to an October 2012 letter requesting him to identify any additional information or evidence pertinent to his claim, including private treatment records. Thus, given the development undertaken by VA with respect to this claim, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled. Id. at 498-99. Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2). See id.; see also Sanders, 556 U.S. at 407, 410. III. Analysis The Veteran contends that he is entitled to a rating in excess of 40 percent for his service-connected low back disability. For the reasons that follow, the Board concludes that an increased rating is 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. 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). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, which is known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's low back disability has been assigned a 40 percent rating under DC 5242, for degenerative arthritis of the spine. See 38 C.F.R. § 4.71a. 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 (IVDS) based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 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 from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2) (see also 38 C.F.R. § 4.71a, Plate V). 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, a February 2007 VA treatment record reflects a complaint of severe mid back pain radiating to the shoulders and legs which was exacerbated the night before. The Veteran reported being unable to sleep and getting up crying. A March 2007 VA treatment record reflects that the Veteran reported chronic neck and back pain which was getting progressively worse. He had difficulty sitting up straight, laying down on his side due to numbness, and stated that the symptoms were located "all over." The treating physician examined the Veteran and noted that "clinically" there was no suggestive evidence of any specific spinal or nerve involvement. It was also noted that narcotics would not be prescribed or recommended. Another March 2007 VA treatment record shows that later that month the Veteran presented for a back brace and a walker due to a two-week history of worsening pain. The pain was worse with walking and standing, and improved with resting. Prescription medications also provided slight relief. An x-ray study showed mild to moderate spondylosis at L3/4. The Veteran was diagnosed with mild degenerative joint disease of the lumbar spine. In response to the Veteran's request for a letter to get reduced fare for public transportation, his treating physician at VA wrote in April 2007 that the Veteran was being treated for chronic back pain due to spondylosis and arthritis, and was disabled and thus in need of a year-long bus pass. In a May 2007 VA treatment record, the Veteran reported severe low back pain with radiation to the legs. It was noted that the Veteran was unable to walk due to being in a lot of pain when he even attempted to bear weight on his legs and feet. A June 2007 VA MRI study showed that the lumbar alignment was normal. There were multilevel degenerative changes in the lumbar spinal vertebrae and discs consisting of posterior disc bulges, anterior osteophyte formation, facet joint hypertrophy, and ligamentous hypertrophy. These changes were not causing spinal canal stenosis or foraminal narrowing. At the July 2007 VA examination, the Veteran reported constant back pain that "travels to all over his body." He stated that it was at a level 10 in a scale of 1 to 10 in severity (with 10 being the worst pain). The pain came on by itself and was also elicited by physical activity. He reported that he required bed rest when experiencing back pain. It was noted that he was "wheelchair bound." On examination, the Veteran's posture was abnormal. He became stiff and flexed during the examination. His gait was also abnormal as it was slow and unsteady. However, it was also difficulty to assess due to the Veteran's being in a wheelchair. He reportedly required a wheelchair and cane because he was unable to do any prolonged standing or walking as a result of the back disability. The examination revealed evidence of radiating pain on movement. Muscle spasm was absent. Radiculopathy was not noted. There was tenderness on examination. Straight leg raising was negative on the left and right. There was no ankylosis of the lumbar spine. On range of motion testing, flexion was to 45 degrees, extension to 10 degrees with pain beginning at 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, with pain beginning at 15 degrees, and bilateral rotation to 30 degrees. Range of motion was limited by pain, fatigue, weakness, lack of endurance, and incoordination, but there were no additional limitations in range of motion after repeated use. An inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvatures of the spine. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. A February 2008 VA treatment record reflects that the Veteran had bilateral upper extremity symptoms and bilateral lower extremity weakness, tingling, and pain that prevented him from walking. It was noted that he was using a wheelchair. In April 2008, the Veteran underwent surgery for his cervical spine consisting of intralaminar decompression. Rehabilitation following this surgery was to focus on gait training, range of motion, balance, stretching, and strengthening of the lower and upper extremities. An August 2008 VA physical therapy record reflects a focus on the Veteran's ability to walk following the cervical spine surgery. The goal was for the Veteran to be able to increase his walking ability. An October 2008 VA treatment record states that the Veteran was able to ambulate a short distance with a cane but generally used a wheel chair. His main complaint was that his left knee gave out. In a December 2008 VA neurosurgery treatment record, the treating physician noted that the Veteran's legs remained "subjectively" weak, but were "objectively strong at confrontation." A February 2009 SSA decision reflects that the Veteran's severe impairments included degenerative disc disease of the cervical and lumbar spine, and a personality disorder. The decision granted disability benefits based on the Veteran's "mental impairment," and accordingly made no findings regarding the severity of the Veteran's other impairments, as stated in the decision. The January 2010 VA examination report reflects that the Veteran had knee arthralgias, high blood pressure, and spinal stenosis of the cervical spine in addition to his low back disc disease. The examiner noted that the Veteran reported for the examination in a motorized scooter, and stated that he gets dizzy standing up and had a sense of weakness in the legs. He also stated that his back will tighten up on him if he walks more than four or five steps. He reported having a lot of trouble getting his socks on, and stated that when he bent forward his legs started to cramp and he experienced anterior left thigh pain radiating to the knee and occasionally shooting down to the ankle. He denied bowel or bladder problems and stated he was fully independent with activities of daily living most of the time. The Veteran had not worked in over ten years. He did not describe significant flare-ups or incapacitating events. He did not have a history of hospitalization or surgery for the lower back. On examination, the Veteran had significant generalized deconditioning. The Veteran was not able to stand without assistance so range of motion testing was performed with him sitting on the examining table. Forward flexion was to 40 degrees, extension to 10 degrees, and lateral flexion and rotation were to 20 degrees bilaterally. The examiner opined that some of the weakness and spasms in the lower extremities were directly related to the cervical spine and not the lumbar spine. A July 2010 private treatment record shows that the Veteran reported pain in the mid and lower lumbar spine, and that it did not radiate. He characterized it as constant, moderate in intensity, and throbbing. On neurological examination, the Veteran's motor and sensory function, reflexes, gait, and coordination were intact. It was noted that the Veteran's gait was affected by a right leg limp and that he had pain with range of motion with regard to flexion and extension of the back. A March 2011 private treatment record provides findings almost identical to the findings in the July 2010 private treatment record, except that it states that the Veteran had normal range of motion, strength, and tone. In a November 2010 application for discharge of a loan due to disability, the Veteran's private treating physician wrote that the Veteran was wheelchair bound with a diagnosis of cervical spine surgery. No mention was made of the Veteran's low back. At the June 2012 Board hearing, the Veteran stated that if he turns the wrong way, or sneezes the wrong way he could trigger severe low back pain. He also indicated that it took him a long time to wash and get dressed due to his low back pain. In the October 2012 VA examination report, the examiner noted that the Veteran reported having lateral muscle spasms, which would not be a part of his disc degeneration. The examiner further stated that the Veteran actually did not have pain associated with his lumbar spine. His lower extremity tingling was not caused by his lumbar spine disorder but rather by his cervical spine stenosis, according to the examiner. The examiner stated that the Veteran had no lower extremity disability related to the low back. On range of motion testing, the Veteran's flexion was recorded as ending at 90 degrees, but all other ranges of motion were recorded as 0. The examiner explained that when the Veteran got out of his scooter at 90 degrees of flexion, he would not extend his spine beyond 70 degrees. The Veteran did not indicate that this was due to his back but rather due to his cervical spine issues. If he tried to extend his back more he became light-headed, which was related to his neck, as found by the examiner. He had no complaints of lumbar spine pain. Motor strength testing, a reflex examination, and a sensory examination did not yield abnormal findings. Straight leg raising was negative bilaterally. It was noted that a positive test would be suggestive of radiculopathy. The examiner further found that the Veteran did not have any other neurologic abnormalities associated with the thoracolumbar spine, including bowel or bladder problems. The examiner also indicated that the Veteran did not have intervertebral disc syndrome. The examiner stated that the Veteran's need for assistive devices was mainly secondary to issues related to his cervical spine. The examiner concluded that the Veteran's low back disability did not impact his ability to work. A careful review of the relevant evidence, as discussed above, shows the Veteran's low back disability more nearly approximates the criteria for a 40 percent rating and thus does not meet the criteria for a higher rating under the General Rating Formula. His low back disability already has been assigned the maximum rating based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5242. Moreover, he has never been diagnosed with ankylosis of the lumbar spine, either favorable or unfavorable, and he does not allege otherwise. Aside from the definition of ankylosis already provided (as explained in Note (5) to DCs 5235-42), ankylosis has been elsewhere defined as a stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. While there is no disputing the Veteran has what amounts to significant limitation of motion of his low back, particularly on account of his pain, it cannot be said that his motion is so restricted as to amount to ankylosis, which essentially contemplates absolutely no motion at all. Accordingly, a rating higher than 40 percent is unwarranted under the General Rating Formula. See 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must also be given to weakened movement, premature or 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 DCs applicable to the affected joint). In this case, however, as the Veteran's low back disability already has been assigned the maximum schedular rating available under the General Rating Formula for symptomatology that includes limitation of motion, an increased rating under sections 4.40 and 4.45 is not available. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board also has considered the potential application of other DCs. Under DC 5243, IVDS (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 IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating IVDS 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 IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Here, the Veteran has not stated and there is no evidence showing 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 July 2007 and October 2012 VA examination reports confirm he does not have IVDS, and such a diagnosis is not otherwise reflected in his treatment records. Thus, although there may be times when he feels the need to rest in bed because of the extent of his low back pain, there is no evidence showing he has had incapacitating episodes as defined by the rating formula. Accordingly, a higher rating is not warranted under DC 5243. See id. The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Here, there is no competent and credible evidence showing the Veteran has neurologic impairment associated with his low back disability. The VA examination reports are unremarkable for findings of associated neurologic abnormalities or impairment, such as in the way of sciatic neuropathy or radiculopathy. Indeed, to the contrary, the January 2010 and October 2012 VA examination reports both indicate the Veteran's bilateral leg symptoms are attributable to his nonservice-connected cervical spine pathology rather than to his lumbar disc disease. The March 2007 VA treatment record likewise shows that the treating physician found no "clinically" suggestive evidence of nerve involvement, and the findings in the June 2007 VA MRI study indicate the degenerative changes of the Veteran's lumbar spine did not cause spinal canal stenosis or foraminal narrowing. So unless and until there is attribution of his lower extremity symptoms to service-connected disability, especially his low back disability, he cannot use these symptoms as grounds for increasing the amount of his disability compensation. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (indicating that only when VA adjudicators are unable to clinically distinguish or differentiate what measure of symptoms is due to service-connected disability from that which is not do they, in turn, have to resolve this doubt in the Veteran's favor according to 38 C.F.R. § 3.102 and 4.3 and for all intents and purposes assume the symptoms are attributable to the service-connected disability). The Veteran is competent to report his subjective symptoms, including numbness, weakness, tingling, and pain in his lower extremities. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge). However, whether such symptoms are associated with or secondary to his service-connected low back disability is a determination that is too complex to be made based on lay observation alone. See id. As a layman, he has not been shown to have a medical background or expertise. Accordingly, the Board accords more weight to the objective clinical findings of the medical professionals who have evaluated him and found that he does not have neurologic abnormalities associated with his low back disability, than to his unsubstantiated lay statements to the contrary. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"). Thus, the preponderance of the evidence shows that he does not have neurologic abnormalities associated with his service-connected lumbar spine DDD. Because he has been diagnosed with arthritis of the lumbar spine, the Board also has considered the DCs directly applicable to arthritis. DC 5010 provides that traumatic arthritis is to be rated as degenerative arthritis under DC 5003. Id. Under DC 5003, degenerative arthritis (hypertropic or osteoarthritis), established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs 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 DCs, 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 DC 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 DC. 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 DC 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. In this case, the 40 percent rating assigned under the General Rating Formula based on limitation of flexion already compensates the Veteran for painful and limited motion associated with arthritis of the spine. See 38 C.F.R. § 4.71a. By its express terms, a separate rating may not be assigned under DC 5003 when an evaluation is already assigned based on limitation of motion. See id. Moreover, to assign a separate rating based on arthritis or painful motion of the spine would result in compensating him twice for the same manifestations of his low back disability under various diagnoses, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14. The Board has considered his statements describing severe and chronic low back pain, and his assertion that he is generally confined to a wheelchair due to his low back disability. Again, he is competent to describe his low back pain and associated functional impairment. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. The competency of evidence differs, however, from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record"). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). As found in the January 2010 and October 2012 VA examination reports, the Veteran's apparent need for a wheelchair is not due to his lumbar spine disability but rather due to symptomatology associated with his cervical spine disability. Indeed, in the November 2010 application for discharge of a loan due to disability, the Veteran's private treating physician indicated that it was the Veteran's cervical spine disability that was associated with his need for a wheelchair. Moreover, the VA physical rehabilitation records associated with his cervical spine surgery, as summarized above, also indicate his impaired gait was associated with his cervical spine pathology, as they reflect a focus on improving his gait following the surgery. There is also evidence that his need for a wheelchair is due to unrelated conditions, such as his leg giving out, as indicated in an October 2008 VA treatment record. The findings of the medical professionals outweigh his lay assertion that his need for a wheelchair is due to his lumbar spine disability. King, 700 F.3d at 1345; see also Layno, 6 Vet. App. at 469; Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. The evidence of record also puts into serious question the credibility of his description of the severity of his low back disability. The October 2012 VA examiner stated that the Veteran's pain was not associated with his lumbar spine but rather his cervical spine. In the December 2008 VA neurosurgery treatment record, the treating physician noted that the Veteran's legs remained "subjectively" weak, but were "objectively strong at confrontation." In other words, the objective clinical findings did not correlate with his subjective complaints. Moreover, a June 2009 VA mental disorders examination, and a February 2007 VA mental health treatment record, both show he got into physical altercations in 2009 and 2007 involving a degree of intensive physical movement that seems strikingly at odds with his alleged limitations. Moreover, a February 2007 VA treatment record indicates that treating medical professionals have doubted the credibility of his reported complaints. These findings are consistent with chronologically earlier evidence of record. For example, in a June 2004 VA examination report, the examiner found that the Veteran's symptoms appeared to be "out of proportion to the pathology observed in the lumbosacral spine." It was also suggested in an April 2004 VA treatment record that X-ray findings did not support his subjective complaints. The SSA decision and supporting documents do not show a more severe degree of disability. Rather, the SSA decision granted disability benefits based on a mental disorder and did not address his physical condition. Thus, the SSA's decision is not relevant or probative with regards to the evaluation of his low back disability. Regardless, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, while the Board has considered the Veteran's statements, the competent, credible, and most probative evidence shows that his low back disability most closely approximates the criteria for a 40 percent rating rather than a higher rating. See 38 C.F.R. § 4.7. There is no suggestion he has been entitled to a rating higher than 40 percent for his low back disability at any point since the filing of his claim for an increased evaluation for this disability, actually, even from one year prior to the filing of his claim which is the relevant temporal focus. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, a staged rating is not warranted. See Hart, 21 Vet. App. at 509-10. The Board has considered additionally whether to address the issue of entitlement to a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 3.340, 4.15, 4.16, 4.18, and 4.19 (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 TDIU as a result of that disability is warranted. Id. at 455. Here, though, while the Veteran has not worked for over ten years, he has not stated and the evidence of record does not otherwise suggest that his low back disability by itself, and without regards to other factors, is sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment. Thus, the issue of entitlement to a TDIU has not been raised as derivative of this claim for a higher rating for his low back disability. See id. The Board also has considered whether the Veteran's claim should be referred for an extra-schedular 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 extra-schedular 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 extra-schedular 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 extra-schedular rating. Id. Referral for extra-schedular 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 degenerative disease and consequent pain 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). He does not have symptoms associated with his low back disability that have been left uncompensated or unaccounted for in the assignment of his schedular rating. See Thun, 22 Vet. App. at 115. With regards to his functional impairment, including reported difficulties with prolonged standing and walking, bending, and lifting, 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, an abnormal gait, and incapacitating episodes 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. There also is no evidence that he has missed time from work or been hospitalized for his low back disability, much less frequently. So even if he managed to satisfy the first tier of the Thun test, he does not also the second, so the third becomes moot. See 38 C.F.R. § 3.321(b)(1). Finally, for the reasons and bases already discussed, the preponderance of the competent and credible evidence shows that his asserted need for a wheelchair, and his reports of lower extremity weakness and pain, is not related to or the result of his low back disability - instead, other unrelated factors. Thus, the rating criteria reasonably describe his low back disability and consequent functional limitations. Accordingly, a comparison of his 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 extra-schedular consideration is not warranted. See id. Accordingly, the preponderance of the evidence is against the assignment of a higher rating for the Veteran's low back disability. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a rating higher than 40 percent for his 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 The claim of entitlement to a rating higher than 40 percent for the DDD of the lumbar spine at L2-3 and L4-5 (lumbar spine or low back disability) is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs