Citation Nr: 1318843 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-22 562 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for service-connected post operative laminectomy, left herniated nucleolus pulposus, with degenerative arthritis of the lumbar spine. 2. Entitlement to an increased rating in excess of 10 percent for service-connected degenerative arthritis of the right hip. 3. Entitlement to an increased rating in excess of 10 percent for service-connected degenerative arthritis of the left hip. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision in which the RO denied the Veteran's claims for a rating in excess of 20 percent for his service-connected lumbar spine disability and a rating in excess of 10 percent, each, for his service-connected right and left hip disabilities. In October 2008, the Veteran filed a notice of disagreement (NOD) as to the denial of his increased rating claims. A statement of the case (SOC) was issued in May 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2009. In February 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that the Veteran's original VA claims file has been lost, and that the current file is a rebuilt one. In February 2013, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence and attempting to rebuild the claims file. Review of the record reveals the RO attempted to locate the original claims folder and rebuild the claims file by contacting the Veteran and various VA facilities; however, attempts to rebuild the claims file were unsuccessful. After completing the requested development, the RO/AMC continued to deny the claims (as reflected in an April 2013 supplemental SOC (SSOC)) and returned these matters on appeal to the Board for further consideration. As a final preliminary matter, the Board notes that, at the March 2013 VA joint examination, the Veteran raised the issue of service connection for disabilities involving his cervical spine and bilateral knees. It does not appear that the Veteran's service connection claims have yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. Pertinent to the July 2008 claim for increase, the Veteran's service-connected post operative laminectomy, left herniated nucleolus pulposus, with degenerative arthritis of the lumbar spine has been characterized by limitation of motion and complaints of pain; however, he has had forward flexion of the thoracolumbar spine greater than 30 degrees, there is no ankylosis of the thoracolumbar spine, and the evidence does not show additional functional limitation due to pain on repeated use or during flare-ups, separately ratable neurological impairment, or incapacitating episodes. 3. Pertinent to the July 2008 claim for increase, the Veteran's service-connected degenerative changes of the right hip has been characterized by limitation of motion of complaints of pain, with objective evidence of right hip motion limited to no less 96 degrees on flexion, including as due to pain and after repetitive motion. 4. Pertinent to the July 2008 claim for increase, the Veteran's service-connected degenerative changes of the left hip has been manifested cases by limitation of motion and complaints of pain and objective evidence of right hip motion limited to no less 100 degrees on flexion including as due to pain and after repetitive motion. 5. The schedular criteria adequate to rate each disability under consideration at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for post operative laminectomy, left herniated nucleolus pulposus, with degenerative arthritis of the lumbar spine, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 3.3159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating IVDS Based on Incapacitating Episodes. 2. The criteria for a rating in excess of 10 percent for degenerative changes of the right hip are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321,4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5252 (2012). 3. The criteria for a rating in excess of 10 percent for degenerative changes of the right hip are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321,4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5252 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a July 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for increased ratings for service-connected lumbar spine and right and left hip disabilities, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The September 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the July 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the reports of VA examinations conducted in July 2008, June 2010, and March 203. The evidentiary record also includes VA treatment records dated from 1998 to 2012, which appear in the paperless, electronic (Virtual VA) file associated with the Veteran's paper claims file (which have also been considered by the RO). The Board finds that no additional RO action to further develop the record in connection with any claim, prior to appellate consideration, is required. As noted, although attempts to rebuild the Veteran's claims file on remand were unsuccessful, the Board nevertheless, the Board finds the directives of the February 2013 were substantially complied with and, thus, an additional remand is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998). In summary, the duties imposed by the VCAA have been considered and satisfied. Through RO notice, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Pertinent to each disability under consideration, the Board points out, at the outset, that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). A. Lumbar Spine Disability Historically, entitlement to service connection was established for post operative laminectomy, lumbar herniated nucleus pulposus, with degenerative arthritis of the lumbar spine and both hip joints was made effective April 27, 1977. The RO assigned an initial, 10 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5243, but from October 24, 1990 to May 16, 2006, the Veteran's lumbar spine and bilateral hip disabilities were rated 20 percent disabling under that code. The Veteran filed the current claim for an increased rating in July 2008. Effective May 16, 2006, the lumbar spine disability was re-characterized as post operative laminectomy, lumbar herniated nucleus pulposus, with degenerative arthritis of the lumbar spine. Since that time, the lumbar spine disability has been rated 20 percent disabling under DC 5242, for degenerative arthritis of the spine. However, effective September 26, 2003, the actual criteria for rating all musculoskeletal spine disabilities is set forth under the General Rating Formula for Diseases and Injuries of the Spine (to include consideration of separate ratings for orthopedic and neurological manifestations of spine disability), or, for disabilities involving disc impairment, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) on the Basis of Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a rating of 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is 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. The next higher rating of 40 percent is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. The criteria are to be applied with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by disease or injury. 38 C.F.R. § 4.71a. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Under the IVDS formula, a rating of 20 percent is warranted where there are incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The pertinent evidence of record includes VA examination reports dated July 2008, June 2010, and March 2013, as well as VA outpatient treatment records dated from 2008 to 2012. On VA examination in July 2008, the Veteran reported having increased pain, constant stiffness and decreased flexibility in his lumbar spine. The Veteran denied having flare-ups or incapacitating episodes of spine disease. He also denied experiencing fatigability and weakness, and he stated he did not have any limitations on walking. The examiner noted the Veteran reported having painful motion bilaterally and tenderness, but the examiner stated that these symptoms were not severe enough to be responsible for abnormal gait or spinal curvature. The Veteran denied having a history of neurological symptoms, such as urinary incontinence, urgency, and frequency, fecal incontinence, or paresthesias. He did, however, report experiencing nocturia manifested by voiding once a night. On examination, the examiner observed normal posture, head position, and symmetry, but he described the Veteran's gait as wide and slightly swaggered. The examiner noted there was evidence of lumbar flattening, but there was no evidence of any other abnormal spinal contour. The Veteran was able to demonstrate forward flexion to 67 degrees and extension to 20 degrees. Lateral flexion was limited to 20 degrees on the right and left, while lateral rotation to the right was limited to 30 degrees and lateral rotation to the left was to 25 degrees. There was no objective evidence of painful motion and repetitive motion did not result in additional limitation or painful motion. Motor and sensory testing was normal, and his reflexes were normal. The examiner noted there was a lumbar scar that measured 7 by .02 cm. X-rays confirmed degenerative disc disease of the lumbar spine. On VA examination in June 2010, the Veteran denied having any neurological symptoms, including urinary incontinence, urgency, and frequency, fecal incontinence, paresthesias, and nocturia. He also denied experiencing fatigue, decreased motion, stiffness, weakness, spasms, and pain. The examiner noted there were no incapacitating episodes of spine disease and no limitation to walking. Objective examination revealed normal gait, with no abnormal spinal curvatures noted, including lumbar flattening. There was also no evidence of muscle spasm, atrophy, guarding, painful motion, tenderness, or weakness. Range of motion testing revealed flexion limited to 85 degrees, while extension and lateral flexion and rotation to the left and right were all 25 degrees. There was no objective evidence of painful motion, including after repetition, and repetition did not result in any additional limitation. On VA examination in March 2013, the Veteran reported experiencing daily low back pain, but he denied having flare-ups that impact the function of his spine. The Veteran reported that he began experiencing a burning sensation in his right thigh about a year and a half before the examination. Nevertheless, the examiner stated that there was no evidence of radiculopathy, as the muscle tone and power in his lower extremities was within normal limits, his reflexes were normal, and his sensation to touch and pinprick were within normal limits. The examiner also stated that the symptoms in the right thigh were not typical of spinal radiculopathy. On examination, there was no objective evidence of pain, muscle spasm, or guarding. The Veteran was able to demonstrate forward flexion to 80 degrees with pain, extension to 10 degrees with pain, lateral flexion to 10 degrees on the right and 15 degrees to the left, and lateral rotation to 25 degrees bilaterally. There was objective evidence of pain in all planes of excursion tested, except lateral rotation. The examiner noted there was no additional limitation in range of motion after repetition, and he also stated there is no functional limitation or functional impairment due to the lumbar spine disability. VA outpatient treatment records document the Veteran's various complaints of low back pain; however, the Veteran has consistently denied experiencing nocturia or bladder or bowel dysfunction. Objective examination has consistently shown that the Veteran has a slow gait and pain in the paravertebral lumbar muscle area. See VA outpatient treatment records dated from 1998 to 2012. Considering the pertinent evidence of record in light of the applicable legal authority, the Board finds that the criteria for a rating higher than 20 percent for the service-connected lumbar spine disability have not been met at any point pertinent to this appeal. As noted above, under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Here, there is no evidence of any ankylosis of the thoracolumbar spine, and the Veteran has not complained of an inability to move his spine. Additionally, there is no evidence that forward flexion of the Veteran's thoracolumbar spine has been limited to 30 degrees or less. As noted above, the July 2008 VA examination, which records the most severe limitation of motion documented during the appeal period, shows that the Veteran was able flex the lumbar spine to 67 degrees, with no evidence showing additional limitation of motion after repetition or due to pain. Thus, the evidence does not demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, and there is no other medical evidence suggesting that this is the case, even when taking into account any additional functional impairment due to pain, fatigue, or lack of endurance. In addition to the lack of objective evidence showing additional functional impairment due to pain, the pertinent evidence of record does not reflect any complaints of flare-ups in the lumbar spine. While the Veteran has reported having pain in his lumbar spine on a daily basis, there is no lay or medical evidence of record that shows the Veteran's pain has been so disabling to result in forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or any other functional impairment that would warrant a rating higher than 20 percent under any potentially applicable diagnostic code, including DC 5242. It follows, then, that the criteria for a rating in excess of 20 percent based upon additional functional impairment due to pain under diagnostic code 5242 are not met. Indeed, even with consideration of the sections 4.40 and 4.45 and DeLuca, the record presents no basis for assignment of a rating higher than 20 percent at any point pertinent to the appeal. The Board also notes that, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected lumbar spine disability. However, such would not be the case here. The evidence shows the Veteran has consistently denied experiencing neurological symptoms associated with his service-connected lumbar spine disability, such as bladder or bowel dysfunction or paresthesias in his lower extremities. See VA examination report; VA treatment records dated from 2001 to 2013. The Board acknowledges the Veteran reported having nocturia during the July 2008 VA examination. However, complaints, treatment, or diagnosis of nocturia or any other bowel or bladder dysfunction due to the lumbar spine are not shown before or since the July 2008 VA examination. Indeed, subsequent VA treatment records and examination reports do not reflect any complaints or treatment for nocturia or any other bladder or bowel dysfunction resulting from the Veteran's lumbar spine disability. In fact, the evidence reflects that any complaints of urinary frequency appear to have been attributed to his nonservice-connected benign prostatic hypertrophy. See VA treatment records dated October 2005. Therefore, the single notation of nocturia in July 2008 is outweighed by the other evidence of record which does not contain any evidence of bowel or bladder dysfunction due to the service-connected lumbar spine disability. The Board also acknowledges the Veteran's recent complaints of burning in his right thigh; however, the March 2013 VA examiner specifically stated that there is no evidence of radiculopathy, as the Veteran's symptoms are not typical of spinal radiculopathy. In sum, the Board finds the evidence does not reflect that the Veteran's lumbar spine disability has been manifested by a separately ratable neurological disability, to include bowel or bladder dysfunction, or radiculopathy. As such, Note 1 of the General Rating Formula provides no basis for assignment of any additional rating(s). Further, although the rating schedule sets forth rating criteria for evaluating IDVS on the Basis of Incapacitating episodes, there is no lay or medical evidence of record that shows the Veteran's lumbar spine disability has resulted in incapacitating episodes-a period of bed rest prescribed by a physician and treatment by a physician, which is required to obtain a compensable rating based upon IVDS. See 38 C.F.R. § 4.71a. Indeed, the Veteran has not reported experiencing incapacitating pain or episodes and the medical evidence of record specifically notes there have not been any incapacitating episodes of spine disease at any point pertinent to this appeal. Therefore, a higher disability rating is not assignable under this provision of the rating schedule. The Board has also considered whether the Veteran may be assigned a separate, compensable rating for the scar on his lumbar spine. As noted, the July 2008 VA examiner noted there is a 7 by .02 cm scar on the lumbar spine. There is, however, no indication or allegation that the scar is adherent and there is no objective evidence of pain with palpation to the scar. As such, and because there is no evidence or allegation of any symptomatology associated with the scar, or indication that the scar results in any limited function, assignment of a separate, compensable rating for the lumbar spine scar is not warranted. See 38 C.F.R. § 4.118, DC 7803 to 7805. For all the foregoing reasons, the Board finds there is no basis for staged rating of the lumbar spine disability, pursuant to Hart, supra. Indeed, the evidence shows the Veteran's service-connected lumbar spine disability has remained relatively stable throughout the appeal period. Accordingly, the Board finds the Veteran's claim for a disability rating in excess of 20 percent for service-connected post operative laminectomy, left herniated nucleolus pulposus, with degenerative arthritis of the lumbar spine must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher (or additional) rating, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Right and Left Hip Disabilities Historically, entitlement to service connection was established for post operative laminectomy, lumbar herniated nucleus pulposus, with degenerative arthritis of the lumbar spine and both hip joints was made effective April 27, 1977. The RO assigned an initial, 10 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5243, but from October 24, 1990 to May 16, 2006, the Veteran's lumbar spine and bilateral hip disabilities were rated 20 percent disabling under that code. Effective May 16, 2006, the right and left hip disabilities were re-characterized as degenerative arthritis of the right and left hip, and a separate, 10 percent rating was assigned for each disability under DC 5252. Under this diagnostic code, limitation of flexion of the thigh warrants a 10 percent rating if limited to 45 degrees, a 20 percent rating if limited to 30 degrees, a 30 percent rating if limited to 20 degrees, and a 40 percent rating if limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Normal range of hip motion is from zero degrees (extension) to 125 degrees (flexion) and 45 degrees (abduction). See 38 C.F.R. § 4.71, Plate II. Considering all pertinent evidence in light of the above, the Board finds that a schedular disability rating in excess of 10 percent for service-connected right or left hip disability is not warranted at any point pertinent to this appeal. The pertinent evidence of record includes VA examination reports dated July 2008, June 2010, and March 2013, as well as VA outpatient treatment records dated from 2008 to 2012. On VA examination in July 2008, the Veteran reported having constant pain in the right leg greater than the left, which resulted in difficulties in his gait and ability to sleep in a bed. He stated that he was unable to move his legs due to pain and that he was unable to cross his right leg over the left leg unless he physically picked his right leg up. Nevertheless, the Veteran denied having flare-ups of joint disease associated with his right and left hip disability. On examination, the Veteran's right hip range of motion included flexion to 100 degrees, extension to 32 degrees, and abduction to 35 degrees. His left hip range of motion included flexion to 96 degrees, extension to 35 degrees, and abduction to 35 degrees. The Veteran was unable to cross his right leg over the left, but he was able to cross the left leg over the right and he was able to move his toes out beyond 15 degrees. There was no objective evidence of painful motion and repetitive motion did not reveal any additional limitation or painful motion. X-rays of the bilateral hips revealed osteoarthritis. On VA examination in June 2010, the Veteran reported having hip pain but he also reported walking three to four miles three times a week. Objective examination revealed the Veteran was able to demonstrate flexion to 125 degrees in his right hip, while extension was limited to zero degrees and abduction was limited to 45 degrees. With respect to the left hip, the Veteran demonstrated flexion to 125 degrees, extension to zero degrees, and abduction to 45 degrees. The Veteran was able to cross both legs over the other and move his toes out beyond 15 degrees. The examiner indicated that there was no objective evidence of painful motion, although he noted the Veteran experienced discomfort with certain movement. X-rays of the hips showed mild degenerative changes and other findings suggestive of impingement syndrome. On VA examination in March 2013, the Veteran reported having daily hip pain but he denied having any flare-ups. Objective examination revealed equal range of motion in the right and left hips, as the Veteran demonstrated flexion to 120 degrees and extension to zero degrees bilaterally. In this regard, the VA examiner also noted that abduction was not lost beyond 10 degrees, that the Veteran could cross his legs, and that he could move his toes beyond 15 degrees. The Veteran's muscle strength was normal in all planes of excursion tested, and the examiner noted there was no functional loss or impairment as a result of the service-connected hip disabilities. VA outpatient treatment records document complaints of right and left hip pain but do not contain any pertinent findings regarding the Veteran's functional impairment as a result of his service-connected right and left hip disabilities, including range of motion or strength. Based on the foregoing, the Board finds that the evidence does not support the assignment of any disability rating higher than 10 percent for the Veteran's right or left hip under DC 5252, inasmuch as the rating criteria requires flexion limited to 30 degrees. In this case, the evidence shows that the Veteran's range of motion in flexion was limited to no less than 100 degrees in the right hip and 96 degrees in the left hip, even when considering any additional functional loss due to pain or other factors. The Board also finds there are no other available diagnostic codes upon which range of motion is evaluated that assist the Veteran in obtaining a higher rating. Indeed, a higher rating is not warranted under DC 5250, as all examinations conducted during the appeal period have clinically shown measureable range of motion in the right and left hip and there is no lay or medical evidence showing actual and effective ankylosis due to pain. Likewise, DC 5253 is not for application in this case, as there is no evidence showing abduction lost beyond 10 degrees. Regarding the DeLuca factors, the Board notes there is no evidence showing additional functional loss in either hip joint due to pain, fatigue, weakness, lack of endurance, or incoordination, including after repetitive use. Additionally, there is no objective evidence of painful motion or complaints of flare-ups in the right or left hip joint at any point pertinent to this appeal. Indeed, while the Veteran has reported having pain on a daily basis, there is no lay or medical evidence of record that shows his pain has been so disabling to result in flexion limited to 30 degrees or any other functional impairment in either hip joint that would warrant a rating higher than 10 percent under any potentially applicable diagnostic code, including DC 5252.. Accordingly, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for assignment of a rating higher than 10 percent for either the right or left hip disabilitybased on limited motion at any point pertinent to this appeal. The Board has also considered the applicability of other, potentially applicable diagnostic codes, but finds that no higher rating is assignable for either the right or left hip. There is no evidence showing the service-connected right or left hip disabilities are manifested by flail hip joint or impairment of the femur. Therefore, DCs 5254 and 5255 do not assist the Veteran in obtaining a rating higher than 10 percent for each hip. Moreover neither hip disability is shown to involve any factor(s) that warrant evaluation under any other provision(s) of VA's rating schedule. On these facts, there is no basis for a staged rating, pursuant to Hart, supra, as the Veteran's service-connected right and left hip disabilities have remained relatively stable throughout the appeal period. Accordingly, the claims for a disability rating in excess of 10 percent, each, for the right and left hip disabilities must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is assignment of a higher rating for either hip disability, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.. C. Final Considerations The Board points out that, in evaluating the claim for higher rating for each disability under consideration, the Veteran's own assertions, as well as those advanced cases his representative on his behalf, on his behalf, have been considered. However, the Board finds that the lay assertions made in support of his claims for a higher rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's lumbar spine, right hip, and left hip disabilities. See 38 C.F.R. § 3.159 (a)(1). See also Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As indicated above, the persuasive evidence indicates that no higher rating is assignable for any disability under consideration. The above determinations are based upon application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that, at no point pertinent to this appeal has the Veteran's service-connected lumbar spine disability, right hip disability, or left hip disability has reflected so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant'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. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalizations). 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. at 116. In this case, the Board finds that the schedular criteria is adequate to rate each disability under consideration at all pertinent to this appeal. Indeed, the rating schedule fully contemplates the described symptomatology for each, including the Veteran's painful, limited motion, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disabilities on appeal. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As such, the Board has also considered whether a claim for a TDIU has been raised. In this case, the evidence reflects that the Veteran retired at the age of 62 due to his age. There is no allegation or indication that he has lost any time from work due to any of the service-connected disabilities here at issue. As such, a claim for a TDIU due to any of these disabilities has not been raised, and need not be addressed. ORDER A rating in excess of 20 percent for service-connected post operative laminectomy, left herniated nucleolus pulposus, with degenerative arthritis of the lumbar spine, is denied. A rating in excess of 10 percent for service-connected degenerative arthritis of the right hip is denied. A rating in excess of 10 percent for service-connected degenerative arthritis of the left hip is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs