Citation Nr: 1316625 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 07-11 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to June 6, 2012 and in excess of 20 percent thereafter for status-post L4-L5 anterior fusion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO awarded a temporary 100 percent rating for the status post L4-L5 anterior fusion for a period of convalescence following surgical intervention pursuant to 38 C.F.R. § 4.30, effective August 24, 2004. The previously assigned 10 percent disability rating was resumed, effective October 1, 2004. A subsequent November 2012 rating decision increased the Veteran's disability rating to 20 percent effective June 6, 2012. FINDINGS OF FACT 1. Prior to March 15, 2010, the Veteran's forward flexion was greater than 60 degrees, and her combined range of motion for the thoracolumbar spine was greater than 120 degrees; there was no muscle spasm or guarding severe enough to lead to an abnormal gait or spinal contour, and no credible evidence of incapacitating episodes. 2. During the March 15, 2010 VA examination, the Veteran's low back disability manifested with 45 degrees flexion when considering pain and repetition of motion. 3. From March 15, 2010, the Veteran's forward flexion was greater than 30 degrees, and there was no credible evidence of incapacitating episodes. 4. During the course of the claim, motor evaluation and sensory evaluation in the lower extremities was normal. 5. The Veteran's surgical scar is well healed, nontender, and less than 6 square inches. CONCLUSIONS OF LAW 1. For the period prior to March 15, 2010, the criteria for a disability rating in excess of 10 percent for status post L4-L5 anterior fusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5237 (2012). 2. Beginning March 15, 2010, the criteria for a disability rating of 20 percent for status post L4-L5 anterior fusion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for a disability rating in excess of 20 percent from March 15, 2010 for status post L4-L5 anterior fusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through a VCAA letter dated in June 2010, the Veteran was informed of the information and evidence necessary to substantiate the claim for an increased rating. The Veteran was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. In addition, during the course of the claim the Veteran was advised of the information and evidence necessary to establish a disability rating and effective date. The case was readjudicated in November 2012. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, private treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the Veteran. The case was remanded by the Board in April 2012 to afford the Veteran the opportunity to provide information on any non-VA treatment providers and to afford the Veteran a VA examination. The RO requested the additional information in an April 2012 letter to the Veteran and a VA examination was provided in June 2012. The examiner provided thorough examination and addressed the Veteran's current level of disability. Therefore, a review of the record indicates that the Board's directives were substantially complied with regarding the issue. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her claim for an increased rating for her lumbar spine disability. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for a higher rating. Additionally, the Veteran volunteered her treatment history and symptoms. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include during her appeal to the Court, nor has she identified any prejudice in the conduct of the Board hearing. As a result of the hearing, additional development was conducted. Moreover, the hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). In claim for higher ratings, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal arises from the assignment of a 10 percent rating following a period of a total rating for surgical convalescence for the Veteran's status post L4-L5 anterior fusion. Following the temporary total rating, the RO resumed a 10 percent rating effective October 1, 2004 under Diagnostic Code 5237. Back disabilities are evaluated under the General Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Intervertebral disc disease can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. Id. Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2012). Alternatively, intervertebral disc syndrome can be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under these criteria, incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent evaluation. For incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Codes 5243 (2012). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's June 2004 VA examination noted forward flexion to 90 degrees and 30 degrees of extension, rotation, and lateral flexion. Neurological evaluation was normal. The Veteran underwent an L4/5 fusion in August 2004. In April 2005, the Veteran attended a pain assessment at the VA outpatient clinic. She reported pain in the mid and lower back that lasts all day and comes and goes. She noted interference with her general activity, sleep, work, and walking ability most of the time. The Veteran was afforded a VA examination in July 2005. At that time, the Veteran reported constant pain located in the low back. She noted her pain was at a level 10 out of 10. She stated that her disability does not cause incapacitation. Her functional impairment from the disability reportedly consists of limited movement and activity. Examination of the spine revealed no complaints of radiating pain or muscle spasm. She did note tenderness on examination of the lumbar paravertebral area. Range of motion was flexion to 90 degrees with pain at 85 degrees, extension to 11 degrees with pain at 11 degrees, right lateral flexion to 31 degrees with pain at 21 degrees, left lateral flexion to 30 degrees with pain at 25 degrees, right rotation to 29 degrees with pain at 28 degrees, and left rotation to 28 degrees with pain at 28 degrees. The joint function of the spine was additionally limited by pain after repetitive use, but was not additionally limited by fatigue, weakness, lack of endurance, and incoordination. He noted motor function within normal limits, sensory function within normal limits, and bilateral lower reflexes of knee jerk 1+ and ankle jerk 1+. The examiner also found no ankylosis of the thoracolumbar spine other than favorable ankylosis at L4-L5 status post fusion. The Veteran was afforded another VA examination in March 2010. The Veteran complained that she cannot walk, but must use a wheelchair for distances. The examiner diagnosed a normal clinical examination without evidence of radiculopathy in the lower extremities and previous L4-L5 fusion. The Veteran complained of limited mobility stating that she can stand or sit for about ten minutes. She states that her previous examination was incorrect because he measured her spinal flexion as normal, whereas she believes this is because flexion relieves pressure on the disc spaces and she has problems straightening up, which causes more pressure on the disc spaces. The examiner noted that in actuality, this description is exactly the opposite of what happens biomechanically. The Veteran reported her pain level to be 10 out of 10, but not incapacitating. The examiner noted that this statement cannot be reconciled. He did note the Veteran reported pain and stiffness. She also reported an incapacitating episode for three days in August 2009 and in November 2008 where she was hospitalized or bedridden. She could not remember any additional details. The examiner found no ankylosis and no spasm. He specifically noted that the muscle spasm, localized tenderness, or guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour. Her motor examination, reflex examination, and sensory examination were normal. Range of motion was flexion to 45 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, right lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner noted no additional limitation of motion with repetitive testing. He specifically noted objective evidence of pain on repetition, but no additional limitations of motion. During the June 2012 VA examination, the examiner diagnosed lumbar disc disease. Forward flexion was noted to 40 degrees with pain at 40 degrees and extension to 15 degrees with pain at 15 degrees. Right lateral flexion was noted to 20 degrees with pain at 20 degrees and left lateral flexion was noted to 15 degrees with pain at 15 degrees. Right and left lateral rotation was noted at 30 degrees with pain at 30 degrees. The Veteran was able to perform repetitive-use testing with no additional limitation in range of motion of the thoracolumbar spine. The examiner noted some functional loss and or functional impairment of the spine, to include limitation of motion, weakened movement, and pain on movement. The examiner stated that the Veteran was able to sit on the examination table with legs extended, which would equal a 90 degree flexion of the lumbar spine, however upon specific flexion she could only do 40 degrees due to pain. The Veteran also testified at a Board hearing in March 2012. She stated she used no assistive devices and reported no prescription medication in relation to her back. She complained of pain and stiffness, as well as having to wear tennis shoes and adjust her position often. She took over the counter medication for her pain. Upon review of the record, the Board finds that for the period prior to March 15, 2010, a rating in excess of 10 percent for status-post L4-L5 anterior fusion is not warranted. Prior to March 15, 2010, the evidence reflects forward flexion of the thoracolumbar spine was greater than 60 degrees, and the combined range of motion of the thoracolumbar spine was greater than 120 degrees. Indeed, the 2005 VA examination noted forward flexion to 90 degrees and a combined motion to 218 degrees. Even considering the degrees at which pain began, despite her being able to actually bend further, pain began at 85 degrees forward flexion, and the combined range of motion was 198 degrees. Such findings warrant the 10 percent rating presently assigned. Moreover, there was no medical evidence showing muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The 2005 VA examiner indicated that muscle spasm was absent, and there was no abnormal gait or spinal contour mentioned. The Board acknowledges that the 2005 examiner noted there was ankylosis of L4/L5 as a result of the surgical fusion. However, while these specific spinal discs are fused together, to warrant a higher rating based on ankylosis, the entire thoracolumbar spine must be ankylosed. Such is clearly not the case here, as the Veteran is still able bend almost fully in all planes of motion. Based on the evidence of record, the Board finds that the Veteran's symptomatology does not more nearly approximate a 20 percent disability rating or higher prior to March 15, 2010 under the General Rating Formula for Disease and Injuries of the Spine. However, the Board finds that beginning March 15, 2010, a 20 percent evaluation for her lumbar spine disability is warranted. On the March 2010 VA examination, forward flexion was reported as 45 degrees. While the content of the examination report raises a question as to the credibility of the information being provided by the Veteran, and the physician examiner seemed to acknowledge such, he nevertheless reported 45 degrees of forward flexion. Notwithstanding that she could accomplish sitting straight leg raising to 80 degrees, the Board will resolve all doubt in the Veteran's favor and assign a 20 percent evaluation for her lumbar spine disability effective March 15, 2010. However, an even higher evaluation is not warranted from that date. At no point during this period has the objective evidence shown forward flexion limited to 30 degrees or less, nor has ankylosis of the entire thoracolumbar spine been demonstrated. The 2010 and 2012 VA examinations showed forward flexion to 45 degrees and 40 degrees at worst, and both examiners noted ankylosis of the thoracolumbar spine was not shown. Both examiners addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995), and noted no change in range of motion findings due to pain or repetition. The Veteran did report pain; however, the Board finds that the Veteran's complaints of pain do not impair her functioning to the degree required to more closely approximate a higher rating for the low back. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board acknowledges the Veteran's allegations during her 2010 examination that she used a wheelchair because she could not walk distances, and her reports to the examiner that her pain was a 10/10. However, the 2010 examiner indicated that such contentions were not consistent with her other statements and/or the clinical findings. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Here, although the Veteran reported having pain of 10/10 (i.e. the worst pain possible) at the time of the examination, she denied any incapacitation. The examiner noted such statements could not be reconciled. In addition, at both the 2010 and 2012 examinations, her forward flexion was limited significantly, yet both examiners noted that the same action during straight leg raising was not limited. The 2010 examiner noted that in the clinic hallway she was observed to move around easily, and noted that her limited movement appeared to be voluntary. He further noted that the statement of requiring a wheelchair for significant distances was not compatible with her report of being able to walk half a mile to a mile. In short, the inconsistencies in her allegations concerning the severity of her symptoms versus the actual physical findings and her other statements raises a serious question as to the credibility of the information being provided, and the Board accords significantly less weight to her assertions. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). The Board finds that the competent and probative evidence does not indicate forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Veteran could flex to 40 degrees without pain and ankylosis of the entire thoracolumbar spine is not shown. Thus a disability rating in excess of 20 percent from March 15, 2010 is not warranted. Moreover, the Board finds that a higher rating based on incapacitating episodes is not warranted at any time during the course of the appeal. The Veteran has denied incapacitation during her 2005 and 2010 examinations. In 2010 she stated that was hospitalized for 3 days in August 2009 and November 2008, but would not give any specifics or indicate whether this was for her neck or back. Although the Veteran has alleged that she lays down when the pain in bad, and goes to bed after arriving home from work as well as on weekends, the evidence of record does not reflect the Veteran has had bed rest prescribed by a physician, let alone for a period in excess of two weeks (prior to March 15, 2010) or totally at least 4 weeks (since March 15, 2010). In addition, as noted above, her reliability as to such contentions is questionable. Thus, a higher evaluation based on incapacitating episodes is not warranted at any time during the course of the claim. The Board has also considered whether a separate rating for chronic neurologic manifestations associated with the Veteran's lumbar spine disability is warranted. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve; a 40 percent rating requires moderately severe incomplete paralysis; a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy; an 80 percent rating requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. While the 2005 examination noted reflexes of 1+ in knee and ankle jerks, the straight leg raising test was normal and neurological testing revealed normal sensory and motor examinations. The 2010 examination revealed normal reflexes, sensory, and motor testing. The examiner stated the Veteran had no evidence of radiculopathy in her lower extremities. Likewise, motor testing, sensory testing and reflex testing were all normal on the June 2012 examination. The examiner indicated that she did not have radiculopathy. The examiner did note that she reported intermittent radicular pain to the lower extremities. However, the General Rating Formula for Diseases and Injuries of the Spine contemplates radiating pain in the evaluations assigned. It specifically notes that a disease or injury of the spine "with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease" shall be rated under the provisions of the general rating formula. In light of the normal motor and sensory testing, the complaints of radiating pain and the isolated finding of 1+ reflexes in 2005 do not rise to a level of even mild incomplete paralysis. Thus, a separate rating is not warranted for radiculopathy into the lower extremities. The Board also notes that the Veteran has a surgical scar as a result of her lumbar fusion. However, both the 2010 and 2012 VA examinations indicated the scar is well healed and nontender. The 2005 examiner noted the scar is 7 cm with no tenderness, ulceration, instability, adherence or tissue loss, and is less than 6 square inches. Accordingly, a separate rating for her scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7802, 7804. As a final matter, the Board has also considered whether the Veteran's low back disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology for the claimed condition and provide for additional or more severe symptoms than currently shown by the evidence. Thus, the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a disability rating in excess of 10 percent prior to March 15, 2010 for status-post L4-L5 anterior fusion is denied. Entitlement to a disability rating of 20 percent from March 15, 2010 for status-post L4-L5 anterior fusion is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Entitlement to a disability rating in excess of 20 percent from March 15, 2010 for status-post L4-L5 anterior fusion is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs