Citation Nr: 1318098	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  10-20 639	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial increased rating in excess of 10 percent for a lumbar spine sprain with degeneration of the L5-S1, also claimed as low back pain (scoliosis).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active service from March 2005 to March 2009. 

This matter is before the Board of Veterans' Appeal (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

This matter was previously remanded by the Board for further development in June 2011 and December 2011.  The case has now been returned to the Board.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The preponderance of the evidence does not show that the Veteran's service-connected back disability is primarily manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of thoracolumbar spine range of motion not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; the preponderance of the evidence also does not show that that the Veteran experienced any incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks due to his back disability.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for a low back strain have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5243, General Rating Formula for Diseases and Injuries of the Spine (2012).





REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) 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 the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  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 Veteran was provided VCAA notice in an April 2009 letter.  This letter notified the Veteran of what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  This letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal.  Furthermore, it was sent to the Veteran prior to the July 2009 rating decision.

However, the appeal arises from the initial award of service connection.  In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, VA's duty to notify in this case has been satisfied. 

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant.  Specifically, the information and evidence that have been associated with the claims file include VA medical records and VA examination reports.  The Board finds the August 2011 VA examination report is adequate for evaluation purposes because the examiner reviewed the claims file, considered the contentions of the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

As discussed above, VA has considered and complied with the provisions of the VCAA. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claim process by submitting evidence and argument.  Thus, 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 claimant.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  The Board also finds that there has been substantial compliance with the remand directives and the Board may proceed with review.  See Stegall v. West, 11 Vet. App. 268 (1998).

II. Merits of the Claim

Historically, the Veteran was originally granted service connection for a sprain of the lumbar spine with degeneration of the L5-S1, claimed as low back pain (scoliosis), in a July 2009 decision.  A 10 percent disability evaluation was assigned, effective as of March 21, 2009.  The Veteran submitted a timely notice of disagreement in January 2010.  A Statement of the Case (SOC) was issued in April 2010 again denying the Veteran's claim and a substantial appeal was filed in May 2010.  The subsequent Supplemental SOCs denied an increased rating and the Board remanded this appeal twice (June 2011 and December 2011) for further development. 

Governing Laws and Regulations

Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for specific ratings for the disabilities.  The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability.  38 U.S.C.A. § 1155.  The evaluation assigned is determined by comparing the extent to which a Veteran's service-connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the schedule of ratings.  Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

If two evaluations are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

At the outset, the Board notes that the Veteran is appealing the initial disability rating assigned for his back disability.  As such, the claim requires consideration of the entire time period involved, and contemplated staged ratings where warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) ( "[Staged]" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating for flare ups or for functional loss due to weakness, excess fatigability, incoordination, or pain on use.  38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by visible behavior, such as facial expression or wincing, of the Veteran undertaking the motion.  38 C.F.R. §§ 4.40, 4.59. 

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

The words "slight," "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although all the evidence has been reviewed, only the most salient and relevant evidence is set forth below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence).

The Veteran's service connected lumbosacral strain currently is evaluated as 10 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. 

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a (2012). 

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  See also Plate V, 38 C.F.R. § 4.71a.

Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a.

The United States Court of Veterans Appeals (Court) has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time.  See DeLuca v. Brown, 8 Vet. App. 202, 206 - 207 (1995).

Factual Background and Analysis

Service treatment records document the Veteran's report of back pain; these records do not include evidence relevant to the applicable diagnostic codes.

According to the evidence of record, the Veteran underwent a VA examination in April 2009 where he reported experiencing mid-thoracic and lower back pain after physical activity requiring movement of his back.  There was no reported history of flare-ups or spinal disease.  The physical examination revealed that the Veteran walked with a normal gait.  Spasticity from T5 to S1was noted.  He demonstrated lumbar spine flexion to 70 degrees, with pain; extension was to 30 degrees; right lateral flexion was to 10 degrees; left lateral flexion was to 30 degrees; and right and left lateral rotation was to 30 degrees.  His range of motion was not additionally limited by pain (except with flexion), fatigue, weakness, or lack of endurance. Straight leg raises were negative.  The motor, sensory, and reflex examination was within normal limits.  X-ray of the spine revealed moderate levoscoliosis of the lumbar spine and suggested slight narrowing of the disc at L5-S1.

The Veteran underwent another VA examination in August 2011 to assess the severity of his back disability.  He reported experiencing pain between his shoulder blades described as a squeezing sensation on a scale of 4 out of 10 and episodic sharp pain on a scale of 8 out of 10 that "catches" him in the position for a second or two.  He was employed at a trucking company that transported scrap metal.  He stated he moved and lifted a large amount of scrap metal on a daily basis for the past six months.  The Veteran also complained of flare-ups that occurred weekly for a duration of one to two days.  Precipitating factors were heavy lifting and overuse.  The flare-ups slowed him down but he continued to work.  

The physical examination revealed thoracolumbar range of motion as follows: flexion to 80 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 40 degrees; and right and left lateral rotation to 30 degrees. There was no objective evidence of pain on active range of motion or following repetition.  However, the examiner noted that while the Veteran's flexion was 80 degrees, he was able to continue to 90 degrees with pain.  There were also no additional limitations after three repetitions of range of motion.  There was no evidence muscle spasms, localized tenderness or guarding was severe enough to be responsible for abnormal gait (the Veteran's gait was normal) or abnormal spinal contour.  There was no evidence of thoracolumbar spine ankylosis.  There were no incapacitating episodes of spine disease and there was no limitation to walking.  
The reflexes were normal (2+) except for decreased ankle jerk (1+).  Reflexes were normal in the bilateral knees and hypoactive in the bilateral ankles.  Pain/pinprick was decreased in the right heel and decreased in the left heel to arch.  The motor exam was normal.  There was no evidence of radiculopathy.  The Veteran denied experiencing any bladder or bowel symptomatology.

The examiner noted that the Veteran was doing very physical back work as he worked for a trucking company and manually removed hundreds of pounds of scrap metal from and to the trucks throughout the day.  The examiner indicated that there was no weakness or fatigability during the examination.  The examiner maintained that the Veteran did not report any flare-ups that would be predictable.  In regard to whether any pain found could significantly limit functional ability during flare-ups or during periods of repeated use, the examiner noted that there most certainly would be an increasing limit in functional ability with aging, repeated use and type of career choice.  The examiner added, however, that it was not feasible to determine the degree of additional limitation of motion on use.  The examiner concluded that the Veteran's subjective reports of his symptoms were consistent with the objective clinical findings.  

Based on the evidence of record, the Board finds that an initial rating in excess of 10 percent for the Veteran's back disability is not warranted.  As previously noted, a 20 percent rating 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.  None of the medical evidence of record reports a range of motion indicative of a 20 percent disability rating.  The April 2009 and August 2011 VA examinations reveal that the Veteran demonstrated thoracolumbar flexion to at least 70 degrees and a combined range of motion not less than 200 degrees.  Moreover, none of the medical evidence of record shows muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  Thus, an initial disability rating in excess of 10 percent is not warranted under the criteria of the General Rating Formula.

It is necessary to consider, along with the schedular criteria, functional loss due to flare ups of pain, fatigability, incoordination, pain on movement and weakness.  DeLuca, 8 Vet. App. at 206- 07.  The evidence includes the Veteran's complaints of low back pain and limited motion.  The Veteran's spinal disability is manifested by some functional limitation due to pain on motion.  The April 2009 and August 2011 VA examination reports include the Veteran's report of pain with range of motion testing.  However, even accounting for any limitations of his lumbar spine range of motion due to pain, the Veteran's range of motion still exceeds that which is required for a 20 percent disability rating.  Pain that does not result in additional functional loss does not warrant a higher rating.  See Mitchell v. Shinseki, 25 Vet. App. 32 (Aug. 23, 2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment.  The Court agreed that pain alone as a basis for a higher rating would produce such "absurd results" as for example where a claimant who experiences very slight pain throughout the range of motion of the knee would receive a 50% disability rating under DC 5261 and a 30% disability rating under DC 5260, whereas a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to 20 degrees would only receive disability ratings of 20% and 30% respectively.). Also, while the examiner found that there most certainly would be an increasing limit in functional ability with repeated use on account of pain and that the Veteran's subjective reports of his symptoms were consistent with the objective clinical findings, it was not feasible to determine the degree of additional limitation of motion on use and the Veteran did not report any flare-ups that would be predictable.  In DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), the Court found that the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the body part is used repeatedly over a period of time, and that because the diagnostic criteria provide for a rating on the basis of loss of range of motion, these determinations should, "if feasible," be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.  Here, the VA examiner expressed such an opinion in the affirmative but it was not feasible to measure such loss or capable of being predictable.  Accordingly, the inquiry ends.  Indeed, a higher rating cannot be based on medical speculation and certainly not lay speculation.  Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating.  There is no showing of any other functional impairment which would warrant a higher rating for these complaints of pain.  38 C.F.R. §§ 4.7, 4.10, 4.45, 4.59, 4.71a.

Also pertinent in this case is whether an increased disability rating is warranted under the criteria for intervertebral disc syndrome used for evaluating incapacitating episodes.  However, the Veteran's back disability has not been shown to have resulted in incapacitating episodes (requiring bed rest/treatment prescribed by a physician) having a total duration of at least 2 weeks but less than 4 weeks during the past twelve months.  In this regard, the Veteran denied having any incapacitating episodes during the August 2011 examination.  As such, a disability rating in excess of 10 percent for incapacitating episodes under Diagnostic Code 5243 is not warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

The Board has also considered whether an increased disability rating is warranted based upon the granting of a separate neurologic disability rating related to the lumbar spine.  However, the evidence of record does not show the existence of any associated neurologic abnormalities, such as bladder or bowel complaints, that are related to the service-connected low back disability.  Moreover, the objective evidence does not show, nor does the Veteran allege, that he experiences any neurological symptomatology in his bilateral lower extremities due to his service-connected low back disability.  While reflexes were hypoactive in the ankles and sensation decreased in the heels, the examiner did not ultimately diagnose a chronic neurological impairment.  Therefore, a separate rating is not warranted for neurological impairment, as no such impairment is shown.

In deciding the Veteran's increased rating claim, the Board has considered the determination in Fenderson, 12 Vet. App. at 126 and whether the Veteran is entitled to an increased evaluation for any additional separate periods based on the facts found during this appeal period.  The evidence of record supports the conclusion that the Veteran is not entitled to a disability rating higher than what is currently assigned at any time within the appeal period.  The Board, therefore, finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that increased evaluations are warranted.

Additionally, the Board has considered the Veteran's statements that a higher disability rating is warranted for his low back disability.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report his back symptoms because this requires only personal knowledge as it comes to him through his senses, and he is credible in regard to the reported on symptoms.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability relating a back disability to the appropriate diagnostic codes.  On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which his disability is evaluated.  The competent and credible lay evidence is outweighed by competent and credible medical evidence that evaluates the true extent of the back impairment based on objective data coupled with the lay complaints.  For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment and the extent to which a determination can be made on the degree of functional impairment experienced during physical activity and flare-ups.

The Board has also considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for the Veteran's service-connected back disability.  Accordingly, the appeal is denied.

Extraschedular Consideration

The Board finds that the Veteran's back disability does not warrant referral for extra-schedular consideration.  In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111  (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. 

The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration.  The level of severity of the Veteran's back disability is adequately contemplated by the applicable diagnostic criteria.  The criteria provide for higher ratings, but as has been thoroughly discussed above, the rating upheld herein is appropriate.  The Board has considered the totality of the symptoms that form the Veteran's disability picture.  The Veteran primarily complains of pain.  This is not an exceptional or unusual feature of his back disability.  In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case.  Accordingly, the claim will not be referred for extra-schedular consideration.

Finally, although the Veteran has submitted evidence of his medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  In fact, during the August 2011 VA examination, he reported that he was employed with a truck company.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).




ORDER

Entitlement to an initial increased rating in excess of 10 percent for a lumbar spine sprain with degeneration of the L5-S1, also claimed as low back pain (scoliosis), is denied.



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs