Citation Nr: 1319339 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-34 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating, in excess of 40 percent, for lumbar disc disease with degenerative arthritis. 2. Entitlement to service connection for left hand arthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1973 to March 1981. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board finds that the claim for a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), holding that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Accordingly, the issue of entitlement to a TDIU has been added to the present appeal. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire rating period, the Veteran's lumbar spine disability has been manifested by at least 20 degrees forward flexion in the thoracolumbar spine with objective evidence of pain with range of motion testing, weakness, fatigability, instability, and abnormal gait. There was no ankylosis. 2. The Veteran's low back strain has not resulted in incapacitating episodes having a total duration of at least six weeks during any 12 month period. 3. The Veteran has radiculopathy in the bilateral lower extremities secondary to service-connected lumbar disc disease with degenerative arthritis, characterized by moderate symptoms of pain, parasthesias or dysthesias, and numbness. 4. The Veteran fractured the fifth proximal phalanx of the left little finger in service. 5. The Veteran has current residuals of a left little finger fracture, characterized by limited motion in the little finger and pain. 6. The Veteran did not have chronic symptoms of left hand pain in service, or continuous symptoms of left hand pain since service separation. 7. Arthritis of the left hand did not manifest in service or within one year of service separation. 8. Currently diagnosed left hand arthritis is not related to service. CONCLUSION OF LAW 1. The criteria for an increased rating, in excess of 40 percent, for lumbar disc disease with degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Plate V, 4.71, Diagnostic Code 5242 (2012). 2. The criteria for a separate 20 percent evaluation for left lower extremity radiculopathy secondary to service-connected lumbar disc disease with degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2012). 3. The criteria for a separate 20 percent evaluation for right lower extremity radiculopathy secondary to service-connected lumbar disc disease with degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2012). 4. The criteria for service connection for residuals of a left little finger fracture have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 5. The criteria for service connection for left hand arthritis are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a November 2007 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The November 2007 notice letter included information regarding how disability ratings and effective dates are assigned. The Veteran was provided additional notice addressing his increased rating claim in September 2008. The Veteran was afforded VA examinations in May 2008, December 2009, and January 2013, with a February 2013 addendum opinion, which addressed his service-connected lumbar spine disability. 38 C.F.R. § 3.159(c)(4) (2012). The Veteran was also afforded a VA examination in January 2013 that addressed service connection for left hand arthritis. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions obtained are adequate because they were performed by a medical professional, and were based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. The Board finds that the rating examinations reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). In a May 2013 statement, the Veteran's representative contends that a remand for a VA examination and opinion is necessary to address left hand arthritis; however the Board finds that the Veteran's left hand was evaluated during a January 2013 VA examination which diagnosed the Veteran with left hand arthritis with no arthritis found in the left little finger on x-ray. The Board finds, additionally, that the January 2013 VA opinion adequately addressed the etiology of left hand arthritis and the examiner provided adequate reasons and bases for the opinion rendered. The Board finds, therefore, that an additional examination and opinion is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, Social Security Administration medical records, VA treatment records, VA examinations, and the Veteran's statements. In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claims, and to respond to VA notices. The Veteran and representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether a staged rating is warranted; however, symptoms related to the Veteran's lumbar spine disability and associated radiculopathy have not changed in severity over the course of the appeal to warrant a staged rating. In evaluating disabilities of the musculoskeletal system, 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 v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. In rendering a decision on appeal the Board must also 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. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. The Veteran is in receipt of a 40 percent rating for chronic low back pain secondary to lumbar disc disease with degenerative arthritis, currently rated under Diagnostic Code 5242. In light of the presence of disc disease, the provisions of Diagnostic Code 5243 are applicable. The schedular criteria for the rating of spine disabilities evaluates degenerative arthritis of the spine (Diagnostic Code 5242) based on limitation of motion under the General Rating Formula for Disease and Injuries of the Spine. Under the General Formula, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Note (2): (See also Plate V.) 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under the applicable criteria, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the general rating for disease and injuries of the spine (outlined above) or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides the following Notes: Note (1): 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. 38 C.F.R. § 4.71a. Note (2): 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 should be evaluated 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. Id. Increased Rating for a Lumbar Spine Disability After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period, lumbar disc disease with degenerative arthritis has been manifested by at least 20 degrees forward flexion in the thoracolumbar spine with evidence of painful motion, weakness, fatigability, instability, and abnormal gait, but has not more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine. Even with consideration of pain and other functional limitations, the Board finds that the Veteran's lumbar spine disability does not approximate the criteria for a higher 50 percent disability rating under Diagnostic Code 5242. See 38 C.F.R. § 4.71a. A May 2008 VA examination reflects pain, stiffness, and weakness in the lumbar spine radiating down to the legs. Posture and gait were normal and the Veteran did not use assistive devices for ambulation. The Veteran reported having one incapacitating episode in the last 12 months, which occurred nine months prior. The Veteran reported that after twisting his back, it popped and it took ten days to get better. No further incapacitating episodes were indicated. On examination the Veteran had 25 degrees forward flexion and 5 degrees extension with pain stated to occur at 10 degrees in extension. There was no pain, fatigue, weakness, lack of endurance, or incoordination after repetitive motion. The Veteran did not have ankylosis. A sensory examination was normal to vibration, pain, light touch, and position sense in the lower extremities. Muscle tone was normal and there was no muscle atrophy. Reflexes were normal. The VA examiner stated that the Veteran did not have radicular symptoms. A December 2009 VA examination pain, stiffness, and weakness in the lumbar spine radiating down to the legs. The Veteran used a cane for walking. Posture and gait were noted to be abnormal. On physical examination, the Veteran had 20 degrees forward flexion and 0 degrees extension with pain with any movement in the lower back. There was no fixed deformity or ankylosis in the spine. The Veteran had impaired light touch sensation, and reflexes in the ankles and knees were hypoactive or absent. The Veteran reported that he lost his job because he could not sit for long periods of time and reported having trouble with daily activities due to severe pain. A January 2013 VA examination reflects 75 degrees forward flexion with pain at 40 degrees, and 10 degrees extension with pain throughout range of motion. There were no additional limitations in range of motion noted after repetitive-use testing. The Veteran had evidence of painful motion, instability, disturbance of locomotion, interference with sitting, standing, or weight bearing, and abnormal gait. The VA examiner stated that the Veteran had no incapacitating episodes due to intervertebral disc syndrome in the last 12 months. The VA examiner noted that the Veteran was a retired truck driver and factory worker. He reported that if he was still working, he would not be able to stand for very long and he could not walk more than 40 to 50 years without having to stop due to pain. The Veteran reported that he could not bend and could not heavy items due to pain, or do repetitive turning or twisting required for factory work. The Veteran is in receipt of a 40 percent evaluation for his service-connected lumbar spine disability. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. VA examinations show that the Veteran had between 20 and 40 degrees flexion in the thoracolumbar spine without additional limitations in range of motion due to pain. May 2008, December 2009, and January 2013 VA examinations specifically note that there was no ankylosis in the spine. VA examinations show that the Veteran had measurable ranges of motion in the spine; he did not have unfavorable ankylosis of the entire thoracolumbar spine. The Board finds, therefore, that even with consideration of the Veteran's functional loss due to pain, for the entire rating period, range of motion of the thoracolumbar spine does not approximate unfavorable ankylosis of the entire thoracolumbar spine as required for a higher 50 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board notes that the General Rating Formula for Diseases and Injuries of the Spine allows for separate evaluations for chronic orthopedic and neurologic manifestations. See 38 C.F.R. § 4.71a Note (1). Ratings based on paralysis, neuritis, or neuralgia of the peripheral nerves are discussed in more detail below. The Board has considered whether a higher evaluation is warranted under Diagnostic Code 5243, which contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a. For the entire rating period, the Veteran's lumbar spine disability has not resulted in incapacitating episodes having a total duration of at least six weeks during the past 12 months to warrant a higher 60 percent evaluation under Diagnostic Code 5243. 38 C.F.R. § 4.71a. A May 2008 VA examination shows that the Veteran had one episode of incapacitation due to injury to his back lasting for ten days. VA treatment records dated from 2007 to 2013 do not otherwise reflect any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician due to the Veteran's lumbar spine disability. A January 2013 VA examination shows that the Veteran had no incapacitating episodes due to intervertebral disc syndrome in the last 12 months. For these reasons, the Board finds that for the entire rating period, the Veteran did not have incapacitating episodes, having a total duration of at least six weeks during any 12-month period, due to his lumbar spine disability to warrant a higher rating evaluation under Diagnostic Code 5243. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. In light of the foregoing, the Board finds that the criteria for an increased rating, in excess of 40 percent, for lumbar disc disease with degenerative arthritis have not been met. 38 C.F.R. §§ 4.3, 4.7. Consideration of Separate Ratings for Neurological Manifestations The Board has considered whether a separate rating is warranted based on any neurologic manifestations the Veteran's lumbar spine disability. The General Rating Formula of Diseases and Injuries of the Spine allows for separate evaluations for chronic orthopedic and neurologic manifestations. 38 C.F.R. § 4.71a. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. During May 2008 and December 2009 VA examinations, the Veteran reported having symptoms of pain radiating down both legs. The December 2009 VA examiner noted that the Veteran had diabetic neuropathy that could contribute to numbness in the lower extremities. VA treatment records dated from 2009 to 2013 reflect a diagnosis of diabetic neuropathy, also shown on VA podiatry reports and diabetic foot examinations, characterized by decreased sensation in the feet on monofilament testing. VA treatment records additionally show that the Veteran complained of back pain which radiated into the lower extremities. A May 2009 VA treatment report reflects low back pain with a myofascial component with no true radicular symptoms noted. A June 2010 VA general medical noted symptoms of back pain and radiation of pain in the legs, weakness, paresthesias, and numbness. The Veteran was stated to have radiculopathy in the bilateral lower extremities. A January 2013 VA treatment report shows that the Veteran had an antalgic, slow gait using a cane with very limited range of motion in the back due to pain. The Veteran was tender in the midline and paraspinals and he had neuropathic pain present in the legs. A January 2013 VA examination shows that the Veteran had decreased sensation on a sensory examination and hypoactive reflexes in the ankles without evidence of muscle atrophy. The Veteran had evidence of intermittent pain, paresthesias, or dysthesias, and numbness in the right and left lower extremities, stated to be moderate in degree. The VA examiner identified involvement of the sciatic nerve and stated that radiculopathy on both the right and left side was moderate in degree. A February 2013 VA opinion shows that radiculopathy was documented in VA treatment records with bilateral leg pain noted. The Veteran was also followed by podiatry with documented diabetic peripheral neuropathy with decreased sensation in feet. The Veteran did not have an EMG study done. The VA examiner stated that the EMG department advised her that while an EMG was good for identifying peripheral neuropathy, it would be difficult to differentiate radiculopathy on an EMG. Based on the clinical findings noted above, the VA examiner opined that it was at least as likely as not that radiating pain in both legs was related to radiculopathy and that decreased sensation in both feet was due to his diabetic peripheral neuropathy. For the entire rating period, the Veteran has reported symptoms of radiating pain in the bilateral lower extremities, and the Board finds that these reports are credible as they were reported to VA physicians in conjunction with treatment as well as during VA examinations. VA examinations and VA treatment records show that the Veteran has both radiculopathy and diabetic peripheral neuropathy present in the lower extremities. The Board notes that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2005); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.) While a February 2013 VA opinion attributed decreased sensation in the bilateral feet to diabetic peripheral neuropathy, the Veteran is also shown to have pain due to radiculopathy. VA examinations also identify symptoms of paresthesias or dysthesias, and numbness in the lower extremities. A January 2013 VA examination assessed radiculopathy and associated symptoms of pain, paresthesias or dysthesias, and numbness as being moderate in degree on both the right and left side. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that separate 20 percent evaluations are warranted under Diagnostic Code 8620 for radiculopathy in bilateral lower extremities, characterized by moderate neuralgia of the sciatic nerve. The Board finds that higher 40 percent evaluations are not warranted under Diagnostic Code 8620 for radiculopathy in the bilateral lower extremities where the Veteran's neurological symptoms are not shown approximate moderately severe incomplete paralysis, neuritis, or neuralgia of the sciatic nerve. See 38 C.F.R. § 4.124a. The Board finds, based on the January 2013 VA examination, that lower extremity symptoms are no more than moderate in degree. Moreover, 38 C.F.R. § 4.124a provides that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree, and the Board finds that the Veteran's symptoms in this case are predominantly sensory, characterized by pain, paresthesias or dysthesias, numbness in the lower extremities. For these reasons, the Board finds that lower extremity radiculopathy is moderate in degree and does not approximate moderately severe incomplete paralysis, neuritis, or neuralgia. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's lumbar spine disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 5003, 5242, and 8620, specifically provide for disability ratings based on limitation of motion, including due to pain and other orthopedic factors, and on findings related associated neurological impairment in the lower extremities. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59 (2012); see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's lumbar spine disability has been manifested by pain, painful motion, limitations in range of motion, abnormal gait, and radiculopathy in the sciatic nerve and these symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). Additionally, the Board has considered the Veteran's functional limitations noted during VA examinations, to include limitations to occupational and daily activities due to his back pain and radiculopathy. VA examinations show that back pain affected the Veteran's mobility, activities of daily living, and recreational activities. The Veteran submitted April 2009 lay statements from co-workers who witnessed his symptoms of chronic back pain and noted limitations to work due to such. The Board finds that these statements are credible, and the Veteran's back pain and associated occupational and functional limitations has been considered in evaluating his disability. While the Veteran has reported during VA examinations that that he lost his job because due to his back pain, and described limitations in his ability to sit, stand, or walk, bend, lift, or do repetitive turning or twisting required for factory work, the Board finds that these occupational limitations are adequately addressed by the separate claim for a TDIU which is being remanded to the RO for adjudication. For these reasons, the Board finds that the schedular rating criteria is adequate to rate lumbar disc disease with degenerative arthritis and associated radiculopathy and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above, including the effect of the Veteran's pain on his occupation and daily life. In the absence of exceptional factors associated with the Veteran's lumbar spine disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the arthritis is a chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In rendering a decision on appeal the Board must also 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. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence does not establish that left hand arthritis is related to service. The Board finds, however, that residuals of a left little finger fracture, characterized by limited motion in the little finger and pain, are related to service. Service treatment records show that the Veteran fractured his left fifth proximal phalanx in July 1974 without evidence of angulation or distraction on x-ray. The Veteran was put on three weeks temporary profile for the healing fracture. No further complaints relating to the left hand or left little finger were indicated in service. A March 1977 separation examination noted the fracture to the left fifth finger, however, no complaints related to the fracture were noted on examination. The earliest post-service evidence of a left hand disability, lay or medical, was evidenced by the Veteran's October 2007 claim for compensation for left hand arthritis, 30 years after service separation. Post-service VA treatment records do not reflect complaints or treatment for left hand arthritis. Arthritis of the left hand did not manifest within one year of service separation. VA examinations show that the Veteran has currently diagnosed left hand arthritis. A June 2010 VA x-ray reflects mild degenerative changes in the left hand. There was no acute fracture or dislocation, and the x-ray findings were stated to be normal for the Veteran's age. A January 2013 VA x-ray also reflects mild arthritis in the left hand; however, a January 2013 finger x-ray did not show arthritis present in the left little finger. The Board finds that the Veteran did not exhibit chronic symptoms related to left hand arthritis in service, or continuous symptoms post-service. Service treatment records show that the Veteran was treated after fracturing left fifth proximal phalanx; however, he had no further complaints in service or post service until he filed his present claim for compensation in 2007. The Veteran contends that current left hand arthritis is related to his in-service fracture. The Board finds, however, that the Veteran has not credibly identified chronic pain or left hand symptoms in service or continuous symptoms post-service. The Veteran was afforded a VA examination in January 2013 to address left hand arthritis. The January 2013 VA examiner reviewed the claims file and interviewed the Veteran. The Veteran asserted that arthritis in left hand was related to a fracture in service. He reported that he was running during physical training 1974 and when he tripped and fractured his little finger. He reported that he had arthritis in the left hand but feels it more in the little finger and he reported that he could not extend the little finger since he broke it. While the Veteran reported that he could not extend his little finger since he broke it in service, service treatment records show that the Veteran did not have evidence of angulation or distraction on x-rays in July 1974. Additionally, during a June 2010 VA general medical examination, there was no angulation or ankylosis on examination of the digits of the left hand and no gap between any finger and the proximal transverse crease of the hand. A January 2013 VA examination shows that the Veteran has a currently diagnosed fracture of the fifth finger of the left hand. He was also diagnosed with arthritis of the left hand. A physical examination reflects loss of motion and painful motion in the left little finger. The Veteran had a gap between the thumb pad and the left little finger of less than one inch with pain beginning at one inch. While the Veteran had objective evidence of limited motion in the left little finger, the VA examiner stated that January 2013 x-rays did not reflect arthritis in the left little finger. The Veteran asserts that arthritis affects is little finger the most, however, January 2013 VA x-rays showed that the Veteran did not have arthritis present in his little finger. In light of the objective findings shown on x-ray, the Board finds that the Veteran's statement as to arthritis present in his little finger is of little probative value. The Board finds, nonetheless that the Veteran has currently diagnosed residuals of a left little finger fracture with evidence of loss of motion and pain in left little finger on examination. Because service treatment records show that a fracture of the left fifth proximal phalanx was incurred in service, resolving the benefit of the doubt in the Veteran's favor, the Board finds that service connection for residuals of a left little finger fracture is warranted. The Board finds, however, that the weight of the competent, credible, and probative evidence of record does not establish a nexus between currently diagnosed left hand arthritis and the Veteran's in-service left fifth proximal phalanx fracture. A physical examination and x-rays were completed at the time of the January 2013 VA examination and the claims file was reviewed. The Veteran was diagnosed with mild degenerative changes in left hand, which was noted to be normal for the Veteran's age on a 2010 x-ray. Repeat x-rays of left hand taken in January 2013 showed no changes. An x-ray of the finger taken in January 2013 did not show arthritis present in the finger. The VA examiner opined, therefore, that mild arthritis in the left hand was normal for the Veteran's age and was less likely as not incurred in or caused by the trauma to the left hand that occurred in July 1974, but rather, was due to the normal aging process. He reasoned that the most common cause for degenerative changes was due to aging. The Board finds that the opinion provided by the January 2013 VA examiner is probative as it was based on objective findings as shown by the record, to include a history of an in-service fracture to the little finger as well as current x-ray evidence, and accordingly, the Board finds that the medical opinion rendered was based upon a full and accurate factual premise. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA examiner provided an adequate statement of reasons and bases for his opinion based on his own medical knowledge and examination of the Veteran. Therefore, the Board finds that the January 2013 VA opinion provides competent, credible, and probative evidence which shows that claimed left hand arthritis is not etiologically related to service. Insomuch as the Veteran asserts that his current left hand arthritis is related to the fracture to the left little finger in service, the Board finds, absent competent, credible, and probative evidence showing chronic symptoms in service or continuing symptoms for over 30 years thereafter, that the Veteran is not competent to relate a claimed left hand arthritis to service. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In light of the probative medical opinion evidence provided by the January 2013 VA examiner, the Board finds that the Veteran's assertion with regard to causation is of little probative value. For the reasons discussed above, the Board finds that the weight of competent, credible, and probative evidence of record shows that left hand arthritis was not incurred in service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER An increased rating for low back strain, in excess of 40 percent, is denied. A 20 percent rating, but no more, is granted for left lower extremity radiculopathy secondary to service-connected lumbar disc disease with degenerative arthritis. A 20 percent rating, but no more, is granted for right lower extremity radiculopathy secondary to service-connected lumbar disc disease with degenerative arthritis. Service connection for residuals of a fracture to the left little finger is granted. Service connection for left hand arthritis is denied. REMAND A claim for a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice, 22 Vet. App. at 447. The raised TDIU issue has not been adjudicated. During the Veteran reported during December 2009 and January 2013 VA examinations that that he lost his job because due to his back pain, and he described limitations in his ability to sit, stand, or walk, bend, lift, or do repetitive turning or twisting required for past factory work. The Board finds that the Veteran has reasonably raised a claim for a TDIU in conjunction with his increased rating claim. A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). The Board finds, however, that a remand is required prior to adjudication of the claim for a TDIU. The Board is remanding the appeal for a TDIU to the RO for proper VCAA notice and adjudication. Accordingly, the issue of TDIU is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with appropriate notice under the VCAA to substantiate a claim for entitlement to a TDIU. 2. The RO/AMC should adjudicate the issue of entitlement to a TDIU. Notice of the TDIU determination and appellate rights should be provided to the Veteran and his representative. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs