Citation Nr: 1318682 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 06-06 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating higher than 10 percent for thoracic scoliosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from October 1984 to September 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office. In November 2004, the Veteran expressed his disagreement with the denial of an increased rating for thoracic scoliosis, and the RO issued him a statement of the case in January 2006 concerning the matter. The Veteran perfected his appeal to the Board with the filing of a substantive appeal (VA Form 9) in February 2006. The Board remanded this case to the RO in July 2010 and in May 2012, for additional development. Thereafter, the case was returned to the Board for its further appellate consideration. FINDING OF FACT The service-connected thoracic scoliosis, 10 percent disabling for more than 20 years and thus protected from reduction, is asymptomatic; the competent medical evidence shows the Veteran's current thoracic spine diagnosis is diffuse idiopathic skeletal hyperostosis, which is not related to his period of service. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for thoracic scoliosis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Codes 5013, 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post-adjudication VCAA notice by letters, dated in September 2003, March 2006, March 2009, and July 2010. The notice included the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect the disability had on employment. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The March 2006 notice included the elements of a service connection claim, including the effective date of a claim and the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice, namely, a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent that the VCAA notice in March 2006, March 2009, and July 2010 came after the initial adjudication, the timing of such notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated as evidenced by the supplemental statements of the case dated in August 2011 and March 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was given the opportunity to testify at a hearing, but he canceled a hearing scheduled in September 2009. The RO has also obtained the Veteran's VA records. The Veteran has not identified any other pertinent records for the RO to obtain on his behalf. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded VA examinations in February 2004, October 2006, March 2009, August 2010 (with an addendum medical report prepared in June 2011), and June 2012 (with an addendum medical opinion prepared in March 2013). As the examination reports and medical opinions contain the Veteran's medical history, findings, and an opinion with a rationale to support the conclusion reached in the opinion, the Board finds that the reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Rating Criteria Thoracic scoliosis has been evaluated as 10 percent disabling ever since service connection was established effective in September 1988. At present, that disability is protected from being reduced, as it has been rated continuously at 10 percent for 20 or more years. See 38 U.S.C.A. § 110 (West 2002); 38 C.F.R. § 3.951(b) (2012). Thoracic scoliosis is rated, by analogy, under 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5013. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; see also 38 C.F.R. § 4.20 (where the particular disability for which the veteran has been service connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous). Under Diagnostic Code 5013, osteoporosis with joint manifestations is rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5013. Degenerative arthritis of the spine, which is found under 38 C.F.R. § 4.71a, Diagnostic Code 5242, is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 . The criteria for rating a disability of the thoracic spine are for application 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. 38 C.F.R. § 4.71a . Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for the next higher rating, 20 percent, are 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 is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. In rating peripheral nerves in the lower extremities, the rating schedule provides a 10 percent rating for mild incomplete paralysis and a 20 percent rating for moderate incomplete paralysis, all depending on the particular nerve or nerve group of the lower extremity that is affected. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Rating factors for a disability of the musculoskeletal system included functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The thoracic vertebrae are considered groups of joints. As regards the joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months is rated 10 percent; incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months is rated 20 percent; incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, is rated 40 percent; and incapacitating episodes having a total duration of at least 6 weeks during the past 12 months is rated 60 percent. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. See Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. IV. Facts and Analysis Service connection for the Veteran's s thoracic scoliosis has been in effect since September 1988, as previously noted. In a September 1989 rating decision, the RO awarded service connection for the disability based on service treatment records showing occasional thoracic pain with a negative examination except for scoliosis, and a VA examination in August 1989 showing complaints of constant mid back pain, tenderness to palpation over the thoracic area, and X-ray evidence of moderate dextro-convex thoracic scoliosis. Years later, VA outpatient records indicate complaints of back pain, but the focus of the pain was in the lower back region. In August 2003, the Veteran filed a claim for a higher rating for thoracic scoliosis. He maintained that his service-connected disability had worsened in severity. In a February 2006 statement, he asserted he had very limited motion and had difficulty walking, lifting, and standing for a prolonged period of time. It is notable that in this same statement he was also claiming service connection for a low back disability, to include as secondary to the service-connected thoracic scoliosis. After the RO denied the low back claim in a May 2004 rating decision, he appealed the decision to the Board. Ultimately, the Board in a May 2012 decision denied the Veteran's claim of service connection for a low back disability. Therefore, his symptom manifestations as pertaining to his low back disability are not to be considered in determining whether a higher rating for the thoracic scoliosis is warranted. In addition to the Veteran's statements, the pertinent evidence consists of VA outpatient records and VA examinations in February 2004, October 2006, March 2009, August 2010 (with an addendum report in June 2011), and June 2012 (with an addendum medical opinion in March 2013). Regarding outpatient records, the Veteran was seen and treated for low back complaints, but not thoracic spine complaints, and the VA problem list includes low back pain but not a thoracic spine disability. At the time of the February 2004 VA examination, the Veteran had complaints referable to the low back. He was noted to be extremely obese (405 pounds) and 6 foot 2 inches tall. On examination, the thoracic spine appeared to be "in neutral." It was noted that there was no scoliosis. Range of motion findings were in reference to the lumbosacral spine. The diagnosis was thoracic scoliosis, asymptomatic. At the time of the October 2006 VA examination, it was noted that historically the Veteran was diagnosed as having thoracic scoliosis of a slight degree in 1987. Currently, the Veteran's main problem was low back pain. On examination, he weighed 388 pounds. Range of motion findings were in reference to the low back. X-rays were positive for findings in the lumbar spine, but there were no signs of scoliosis. The diagnoses included history of thoracic scoliosis, without signs of scoliosis noted on the present examination. The examiner remarked that there was also no evidence that thoracic scoliosis was causing pain, whereas the limitation of motion in the lower back was due to pain secondary to degenerative disc disease with facet hypertrophy in the lumbar spine. At the time of the March 2009 VA examination, in reviewing the Veteran's medical history the examiner remarked that there were no physical signs of thoracic scoliosis on the two previous VA examinations. The Veteran related that most of his pain was localized to the lower back (the examiner stated that the low back problem was not related to the scoliosis). He reported that the pain in his mid-back most of the time was estimated to be 4 out of 10 on a scale of severity, and that the pain seemed to come on with activity such as lifting and bending forward. On examination, there was normal kyphosis to the back and no outward signs of scoliosis. Range of motion findings pertained to the lumbar spine (forward flexion to 70 degrees, extension to 30 degrees, lateral bending to 30 degrees for both sides, and rotation to 50 degrees for both sides). X-rays of the thoracic spine showed mild to moderate osteoarthritis involving the entire thoracic spine, with an approximate 10 degree thoracic curve with a convexity to the right. The diagnosis was thoracic scoliosis documented on X-ray. The examiner commented that the Veteran's main complaint with regard to the mid-back was occasional pain, and that the Veteran had no specific weakness, lack of endurance, lack of coordination, or fatigability in the mid-thoracic spine related to the scoliosis. The examiner stated that the scoliosis did not keep the Veteran from the normal activities of daily living. In August 2010, the Veteran underwent another VA examination, which was conducted by the same examiner from the March 2009 examination. The focus of the examination was the lumbar spine, but X-rays of the thoracic and lumbosacral spine reportedly showed moderate degenerative joint disease with DISH (diffuse idiopathic skeletal hyperostosis). [A review of the X-ray reports shows the lumbar spine contained degenerative changes and the thoracic spine had findings consistent with DISH.] Range of motion findings for the thoracolumbar spine showed flexion from 0 to 30 degrees, extension from 0 to 10 degrees, lateral flexion from 0 to 20 degrees on both sides, left lateral rotation from 0 to 30 degrees, and right lateral rotation from 0 to 20 degrees. There was no additional limitation with repetitive motion. The diagnosis was lumbar spondylosis. In furnishing a diagnosis, the examiner evidently mistook the diagnosed lumbar spondylosis as being service connected, and stated that "thoracic scoliosis is only a finding" that had "nothing to do with" his back problem (lumbar spondylosis) and vice versa. The examination report was returned for an addendum report because the examiner apparently believed the lumbar spondylosis was service connected and not thoracic scoliosis, when the opposite was true. In a June 2011 addendum VA report, a different examining physician reviewed the claims file and noted that scoliosis of the thoracic spine was clearly identified on the Veteran's exit physical examination from service. Given the limited degree of scoliosis noted on X-ray and examination, the examiner stated that it was reasonable to conclude that the Veteran's thoracic scoliosis was currently mild and likely asymptomatic. Citing to a medical article on scoliosis, the examiner stated that less than 1 percent of patients required treatment for scoliosis, which suggested that only the more severe cases were symptomatic and required medical attention. Further citing the medical article, the examiner stated that as there were no degenerative or arthritic findings of the thoracic spine [that is, contemporaneous with service, although this is not entirely clear], it was more likely than not that the diagnosed scoliosis was congenital in nature. In June 2012, the Veteran underwent another VA examination, for the purpose of determining the severity of the thoracic spine disability, including any limitation of motion. He weighed 405 pounds at the time. Range of motion findings for the thoracolumbar spine showed flexion to 30 degrees (with pain at 30 degrees), extension to 5 degrees (with pain at 5 degrees), lateral flexion to 10 degrees (with pain at 10 degrees) on both sides, and lateral rotation to 15 degrees (with pain at 15 degrees) on both sides. There was no additional limitation of motion after repetitive use testing. As for functional loss, the examiner noted that after repetitive use, there was less movement than normal, excess fatigability, and pain on movement. There was no guarding or muscle spasm of the thoracolumbar spine and muscle strength testing was normal in the lower extremities, as was reflexes and sensation. There were no signs or symptoms of radiculopathy. The examiner concluded that changes noted on previous X-rays were more likely due to the Veteran's body habitus than any back condition in particular, and that the Veteran would probably continue to have back problems due to his weight. He noted that the VA problem list did not list any problems with the thoracic spine. The examiner opined that the thoracic spine should not limit his ability to obtain gainful employment. The examiner noted X-rays of the thoracic spine from August 2010, in comparison with X-rays from March 2009, showed normal vertebral alignment, disc spaces that were preserved although there were marginal osteophytes throughout the thoracic spine, and no focal soft tissue abnormalities; the impression was stable examination with imaging findings consistent with DISH. As the examiner did not provide a current diagnosis for the thoracic spine, a VA medical opinion was sought. In a March 2013 medical opinion, a VA physician reviewed the claims file in detail. As for the thoracic spine, he found that the current diagnosis was DISH, which was less likely than not incurred in or caused by an injury, event, or illness in service. He provided a rationale for his conclusion. He reviewed the finding of dextro-scoliosis around the time of service, noting that the appearance of scoliosis can be caused by asymmetrical muscle spasm in the paraspinal muscles on one side of the back. He also noted that current X-rays did not include evidence of scoliosis. He cited to medical literature in asserting that the diagnosis of scoliosis involved specific measurements, several tests, and special studies to avoid a false positive diagnosis. Further, he noted other medical reference material to explain DISH, which was manifested by large flowing osteophytes connecting at least four vertebrae, and typically found in the thoracic spine. He stated that obesity was associated with DISH and that the Veteran's weight exceeded 400 pounds. In applying the criteria for limitation of motion, the Board notes initially that beginning with range of motion findings for the "thoracolumbar" spine on the August 2010 VA examination (because limitation of motion findings prior to August 2010 were in reference only to the low back, lumbosacral spine, or lumbar spine), the Veteran is shown to have met the criteria for a 40 percent rating under Diagnostic Code 5242 based on forward flexion to 30 degrees. Similar findings were noted for the thoracolumbar spine on the June 2012 VA examination. These findings, however, appear to reflect only the limitations produced by the nonservice-connected low back disability and not the service-connected thoracic scoliosis. As noted at that time, the Veteran has a concurrent low back disability diagnosed as lumbar spondylosis, which was symptomatic. His service-connected thoracic scoliosis is not shown to be productive of symptoms, and in fact more recent medical evidence shows that the Veteran has a thoracic disability that is unrelated to service rather than thoracic scoliosis. For the period covered in this appeal, VA outpatient records do not show treatment specifically for scoliosis of the thoracic spine. The VA examination reports in February 2004 and October 2006, which reflect a diagnosis of thoracic scoliosis (or history of scoliosis), also indicate that the disability was not symptomatic. The VA examiner in March 2009, who diagnosed thoracic scoliosis based on X-ray findings of osteoarthritis and a slight curvature, along with complaints of pain, re-examined the Veteran in August 2010, at which time new X-rays showed findings consistent with DISH. In other words, thoracic scoliosis was not documented. An addendum VA report by another examiner in June 2011 indicated that the Veteran's thoracic scoliosis was mild and likely asymptomatic. A June 2012 VA examiner did not furnish a diagnosis but indicated that the latest X-rays from August 2010 showed DISH and that the Veteran's weight would probably continue to cause back problems. In the March 2013 medical opinion, a physician determined that the diagnosis of the Veteran's thoracic spine disability was DISH, without X-ray evidence of scoliosis, and that DISH was likely not related to the Veteran's period of service but to his obesity. Therefore, based on the foregoing evidence, the Veteran has a diagnosis of thoracic scoliosis which is asymptomatic, or he has DISH which is productive of complaints of pain but which is not related to service. Given either disability presentation, the Board finds that the criteria for a higher rating for scoliosis have not been satisfied under 38 C.F.R. § 4.71a, Diagnostic Codes 5013, 5242. While the Veteran is competent describe symptoms such as mid-back pain, his subjective complaints are not consistent with the objective findings on the numerous VA examinations. The Board concludes that the Veteran's subjective complaints of mid-back pain are outweighed by the findings of the VA examinations, which do not support a higher rating for his thoracic spine disability. The Veteran is service-connected for thoracic scoliosis, and the VA examinations that reflected a diagnosis of thoracic scoliosis indicated it was asymptomatic. The more recent VA examinations that indicated a diagnosis of DISH, instead of scoliosis, found it was not related to service. Further, the Veteran is not competent to establish a diagnosis or to express an opinion on the origin or cause of his diagnosed DISH. DISH is not a condition under case law where lay observation has been found to be competent, and the determination as to the diagnosis and causation of the Veteran's DISH is medical in nature, that is, not capable of lay observation. Where, as here, the questions involve a medical diagnosis (which is not capable of lay observation) and medical causation, competent medical evidence is required to substantiate the claim because the Veteran as a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In summary, the rating criteria for a rating higher than 10 percent for thoracic scoliosis have not been met. In arriving at its conclusion, the Board has considered whether assignment of "staged" ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007) was appropriate. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria reasonably describe the level and symptomatology of the Veteran's service-connected thoracic spine disability, and provide for higher ratings for more severe symptoms for those symptoms that are related to the service-connected disability. For example, the manifestations of the thoracic spine disability, including chronic pain, limitation of motion, and degenerative changes, are all incorporated in the schedular criteria for evaluating impairments of the thoracic spine. As articulated above, thoracic scoliosis is asymptomatic, and those thoracic spine symptoms that are present are attributable to nonservice-connected disability. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. As the disability picture is encompassed by the Rating Schedule, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A rating higher than 10 percent for thoracic scoliosis is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs