Citation Nr: 1319386 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-15 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, from April 1, 2008 through July 7, 2008. 2. Entitlement to an evaluation in excess of 40 percent for residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, on and after November 1, 2008. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his mother ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to May 2001 and from October 2001 to October 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which implemented a September 2007 proposal to reduce the evaluation of the Veteran's low back disability from 60 percent to 40 percent. In May 2010, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In November 2010, the Board remanded the issue of entitlement to an evaluation in excess of 40 percent for residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, from April 1, 2008 and the issue of entitlement to a total disability rating based on individual unemployability (TDIU) from April 1, 2008. In a January 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to a TDIU effective April 1, 2008 through July 7, 2008 and reinstated entitlement to a TDIU from November 1, 2008. The record demonstrates that entitlement to a 100 percent evaluation was already in effect from July 8, 2008 through October 31, 2008 based on surgical or other treatment necessitating convalescence. As a result, the January 2012 rating decision represented a total grant of the benefits sought on appeal with respect to the issue of entitlement to a TDIU from April 1, 2008, and therefore, this issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Although the January 2012 rating decision granted entitlement to a TDIU for the periods currently on appeal for the Veteran's low back disability, the Board notes that 40 percent is not the maximum rating available for the low back disability. As such, the claim remains in appellate status, and the Board has re-characterized the issues to include staged ratings as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). FINDINGS OF FACT 1. From April 1, 2008 through July 7, 2008, the orthopedic manifestations of the Veteran's low back disability were pain and decreased limitation of motion, not productive of functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine, and without demonstration of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 2. On and after November 1, 2008, the orthopedic manifestations of the Veteran's low back disability were pain and limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, not productive of functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine, and without demonstration of incapacitating episodes having a total duration of at least six weeks during the past 12 months. CONCLUSIONS OF LAW 1. From April 1, 2008 through July 7, 2008, the schedular criteria for an evaluation in excess of 40 percent for orthopedic residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5238, 5243 (2012). 2. On and after November 1, 2008, the schedular criteria for an evaluation in excess of 40 percent for orthopedic residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5238, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable decision of the Agency of Original Jurisdiction on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Accordingly, in VA correspondence dated in June 2006, the Veteran was informed of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating and effective date. All the VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Further, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," an April 2008 Statement of the Case set forth the relevant diagnostic codes for rating the disability at issue and included a description of the rating formulas for the current evaluations and for all other higher evaluations. The Veteran was thus informed of what was needed not only to achieve the next higher schedular rating but also what was needed to obtain all schedular ratings above that assigned. Therefore, the Board finds the Veteran has been informed of what was necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to Assist With regard to the duty to assist, the Veteran's claims file contains service treatment records, VA examination reports, private treatment records, and lay testimony provided by the Veteran, his wife, his children, other family members, and friends. In November 2010, the Board remanded the Veteran's claim on appeal for additional development. Specifically, the Board directed that the AMC schedule the Veteran for an examination to determine the nature and current level of severity of the Veteran's low back disability. To that end, 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 evidence demonstrates the Veteran underwent additional VA examination in December 2010. In this case, the Board finds the December 2010 VA examination adequate as it was predicated on a review of the Veteran's claims file and the results of an adequate and complete physical examination. Additionally, clinical findings pertinent to the applicable criteria for rating the Veteran's increased evaluation claim were provided. Further, the December 2010 examination provided findings relevant to the Veteran's functional impairment in daily life. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Hence, the examination provided findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining an examination or opinion on appeal has been met. 38 C.F.R. § 3.159(c)(4). Furthermore, the Board finds the AMC substantially complied with the November 2010 remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing to fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States. The representative asked the Veteran specific questions regarding his symptoms of and treatment for his low back disability during the periods on appeal. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher 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. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement. Id.; 38 C.F.R. § 4.45. The general rating formula for diseases and injuries of the spine (General Rating Formula) provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability is rated under 5243 and considered under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this Note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012). As noted above, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine (38 C.F.R. § 4.71a) specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. In this regard, the Board notes that on VA examination in December 2010, the Veteran reported a history of urinary incontinence and erectile dysfunction. The low back diagnosis included urinary and erectile dysfunction complaints. In this regard, the Board notes that service connection has been separately established for erectile dysfunction, and neurogenic bladder, associated with the service-connected low back disability. As such, these disabilities are not for consideration in this appeal. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, from April 1, 2008 through July 7, 2008 An April 2008 private treatment record indicates the Veteran fell down stairs approximately three weeks prior and had had a severe increase in his low back pain. A nerve conduction velocity revealed no evidence of radiculopathy and a magnetic resonance imaging scan (MRI) revealed stable postoperative changes from the anterior lumbar interbody fusion at L5-S1 with some degenerative disc disease (DDD) and possible disc damage at L4-L5. An April 2008 VA treatment record shows the Veteran complained of worsening back pain. He denied any recent back trauma. The VA physician reported that an April 2008 MRI did not have any significant findings and a nerve conduction study was unremarkable. The assessment was chronic low back pain status-post low back surgery. A May 2008 VA treatment record indicates the Veteran complained of severe low back pain rated at level 10 out of 10. He stated that he had bent over and pinched a nerve in his back, which had aggravated his low back pain. A May 2008 private treatment report shows the Veteran was having lower back pain with left lower extremity radiculopathy. The discogram demonstrated reproduction of the Veteran's pain at L4-L5. A May 2008 computed tomography scan of the lumbar spine reflected an impression of a normal L3-L4 level; L4-L5 disc bulge slightly to the left of midline, with the Veteran symptomatic during the procedure; and postoperative changes at L5-S1. In a May 2008 written statement, the Veteran's wife testified that the Veteran suffered from his back injury every day. She stated the injury had caused a strain on the Veteran's physical and mental state and that he was unable to function like the average 26 year-old man. The Veteran's wife asserted that with each surgery his back had only worsened. She reported that there were days when he could not get out of bed due to pain or a simple wrong movement. The Veteran's wife testified that he was unable to play and run with their children, and although he had tried a number of medications and therapies, nothing had worked. She reported that when the Veteran attended school he had struggled to sit or stand and was sometimes unable to get out of bed to attend classes. The Veteran's mother also submitted a written statement in May 2008 testifying to her observations of the Veteran's symptoms. She reported that the Veteran was in constant pain every day and could not sit for long periods of time. She stated that he was unable perform simple lifting, bending, or walking at times. In a May 2008 statement, the Veteran's grandparents asserted that he was unable to sit or stand for lengths of time and was unable to bend forward or backward. They stated that there were times when he was unable to get out of bed and had a hard time keeping up with his youngest child. The Veteran's grandparents stated it only took one wrong movement for the Veteran to become incapacitated. He was unable to golf, run, and jump with his kids and perform daily activities. A friend of the Veteran's also submitted a May 2008 statement asserting the Veteran was in constant pain. The friend reported that he sometimes found the Veteran in bed unable to move or in a chair with ice or heat on his back. He stated that the Veteran's back was worsening and limited his everyday life. In an additional May 2008 statement, an employer reported that the Veteran was unable to work due to his numerous back surgeries and pain. He stated that he had seen the Veteran walk through a store and be required to sit down before he finished his shopping. A private physician reported in a May 2008 letter that he had known the Veteran for several years and stated that there had not been one day that he had seen the Veteran without pain. The physician asserted that the Veteran's pain did not cease regardless of whether he was sitting, lying, or standing. He stated the severe pain could be seen on the Veteran's face and that it was impossible for him to work. The Veteran also submitted a written statement in May 2008 from S. T., who reported that she had personally seen a deterioration in the well-being and functioning of the Veteran. She stated that she had viewed the lack of mobility and pain that the Veteran went through every hour, each day. In a June 2008 letter, a private physician reported that the Veteran continued to have low back pain despite essentially having single level disease at L5-S1. The Veteran reported minimal improvement. The private physician recorded that an MRI revealed minimal DDD at L4-L5 and that all studies had shown the L5-S1 cages were fused and in good place. A nerve conduction velocity revealed no evidence of radiculopathy or neuropathy in the bilateral lower extremities and a discogram revealed discogenic pain at L4-L5. The private physician stated they had set up an L4-L5 posterior lumbar interbody fusion at L4-L5 and decompressive laminectomy with L4 through S1 instrumentation and fusion on July 8, 2008. A June 2008 VA treatment record indicates the Veteran was fitted for a lumbar orthosis with a soft pad in the lumbar region. In May 2010, the Veteran testified during a video conference hearing before the undersigned VLJ. The Veteran asserted that from April 2008 to July 2008, he experienced severe back pain that radiated down his left leg and up his spine to his neck. Due to the pain and the immobility, he was unable to do anything, to include holding a job. He also reported being denied several jobs because of his limitations. He stated he was unable to bend or lift, stand for a long period of time, and walk for more than 50 to 100 feet without having to take a break. The Veteran testified that he had numbness and weakness in both of his legs and sciatica in the left leg, to include tightening and pain. He stated he was unable to undergo physical therapy because physicians believed it could do more damage. From April 1, 2008 through July 7, 2008, the Veteran's low back disability is currently rated as 40 percent disabling. For a 50 percent rating under Diagnostic Code 5238, the evidence must show functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine, and for a 100 percent rating, there must be functional impairment comparable to unfavorable ankylosis of the entire spine. In addition, an increased rating of 60 percent is provided for under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Here, the medical evidence of record does not demonstrate functional impairment, including due to pain, comparable to unfavorable ankylosis. In April 2008, a private physician found an MRI revealed stable postoperative findings, and a VA physician noted that an MRI did not have any significant findings. The assessment was chronic low back pain. Although in May 2008, a private physician reported that the Veteran's pain did not cease regardless of whether he was sitting, lying, or standing, the private physician did not report any clinical findings that the entire cervical spine, the entire thoracolumbar spine, or the entire spine was fixed in flexion or extension and resulted in 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 neurologic symptoms due to nerve root stretching. In June 2008, a private physician reported that although the Veteran continued to have low back pain, he essentially had single level DDD at L5-S1. As a result, the Board finds an evaluation in excess of 40 percent under Diagnostic Code 5238 is not warranted from April 1, 2008 through July 7, 2008. In addition, the medical evidence does not reflect acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the 12 months applicable to the period on appeal. In fact, the record does not show that a VA physician or private physician prescribed bed rest at any time during the period from April 1, 2008 through July 7, 2008. Residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, on and after November 1, 2008 A November 2008 VA treatment record shows the Veteran underwent a L4-L5 posterior lumbar interbody fusion with decompressive laminectomy and posterior lateral instrumentation with fusion at L4-L5 and S1 on July 8, 2008. His pain was primarily in the lumbar back but radiated up into the neck and occipital region, which caused headaches. In addition, the Veteran reported that the pain radiated down his posterior legs to the mid-calf region, with weakness into the left anterior portion of the thigh. Physical examination revealed the Veteran was slightly leaning forward, motor and power of lower extremities were five out of five bilaterally, and sensation was intact. In an additional November 2008 VA treatment record, the Veteran reported continuous, sharp, aching pain that worsened when he was walking or in one position for too long. A November 2008 VA treatment record shows the Veteran reported being unable to perform normal activities and was considering nerve stimulation. The Veteran and his wife stated that he sometimes urinated in bed. The assessment was low back pain, post surgery, post laminectomy syndrome. An additional November 2008 VA treatment record reflects that the Veteran reported continuous, stabbing pain rated at a level nine out of 10. A February 2009 private treatment record reflects that the Veteran moved about the room with some difficulty. Flexion and extension were very minimal due to pain. His rhythm of movement was jerky with increased pain on extension after flexion. Neurological examination revealed S1 was weak but equal bilaterally; strength in the L1 through L5 was also mildly decreased but equal side to side; sensation was decreased at S1 and L5 on the left but intact and equal otherwise; and Babinski was upgoing on the right and down on the left. Clonus was negative; straight leg raising was to 45 degrees bilaterally, sitting and supine; femoral stretch test was positive bilaterally; and the Veteran had moderate tenderness in the lumbar and lumbosacral spine, both midline and paravertebral regions. Films of the lateral view showed instrumentation rods and screws in place at L4-5 and L5-S1, with interbody spaces, and TLIF at L4-5 with an ALIF using screw cages at L5-S1 through the anterior approach. It was not evident that there was a fusion at L4-5 with space noted between the TLIF cages and the distal body of the L4 vertebral body. The screws had fairly good placement with unicortical purchase in the sacrum only. The ALIF screw cages seemed somewhat set into the vertebral body of L5. Flexion and extension failed to reveal any gross hypermobility at the attempted fusion region, and there was no hypermobility through the rest of the lumbar spine noted. The impression was postoperative changes with evidence of DDD of the lumbar spine and clinical presentation of spinal stenosis. In an August 2009 private treatment record, the private physician noted that an MRI was fairly unremarkable, showing that the adjacent level disc at L3-4 appeared to be fairly normal. A CAT scan showed some mild malposition of the screws on the right at L5 and S1. The private physician found he was not totally convinced that the fusion at L4-5 was solid. The cage at L5-S1 showed that it was in the bone, but no significant opening of the disc space was obtained. Because the private physician found additional surgery would probably not aid the Veteran further, he recommended a chronic pain management program. At the May 2010 hearing, the Veteran asserted that after his surgery in July 2008 his back pain was considerably worse and that he had a tightening in both legs. He also reported a very limited range of motion and severe headaches. The Veteran testified that he was in severe pain every day and that he spent most of his days in bed or on the couch. He reported trying to find employment but being rejected because of his limitations. The Veteran testified that he was able to stand for approximately 15 minutes without being in severe pain and that he could sit down for approximately 30 to 45 minutes without having to rearrange or stand back up. The Veteran's wife testified that she had to massage his legs for him to be able to stand and had to help him get to the bathroom. She also stated that there were times when he was unable to go to the bathroom because his back was pinched. She stated that she and other family members often had to help him get out of a chair and the bathtub and get him ready for and into bed. The Veteran's wife asserted he was unable to go to certain events because there was not proper seating and that his legs gave out on him if he was walking alone. The Veteran's mother testified that the Veteran's most recent surgery seemed to have made his symptoms worse. She reported that he could hardly walk up and down the steps and that he did not have much quality of life. She said he became depressed when he was unable to play with his kids and always looked as though he were in pain. The Veteran also submitted several statements from additional lay witnesses in support of his claim. A May 2010 letter from his wife's former employer reported that the Veteran's wife would often have to leave the office to check on the Veteran. She also stated that there were times when she had to cover for the Veteran's wife on the weekends when the Veteran needed someone to be with him at home. The Veteran's son stated that the Veteran could no longer play tag and football with him. The Veteran's friend, C. S., reported that he had previously enjoyed playing golf and working out with the Veteran; however, the Veteran was no longer able to do the things he used to and had many limitations. Another friend, T. C., stated that the Veteran spent most of his time on his couch or in bed and was always in pain. In December 2010, the Veteran underwent VA examination in connection with his claims. The Veteran reported severe flare-ups that occurred every one to two months and lasted approximately one to two days. Precipitating factors included increased activity and prolonged sitting or standing. During the flare-ups, the Veteran stated that he was unable to do much of anything besides basic activities of daily living. He reported a history of decreased motion, stiffness, weakness, spasm, and constant lumbar spine pain. The Veteran described the pain as stabbing, throbbing, and aching, with sharp, radiating pain in the left knee area. The Veteran denied a history of fatigue. There were no incapacitating episodes of spine disease reported, and the Veteran stated that he used a cane and a brace and was able to walk one quarter of a mile. Physical examination revealed the Veteran's posture and head position were normal and symmetrical in appearance. The Veteran had a somewhat stiff, antalgic gait, which he related to his left knee issue. There was no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. Examination of the muscles of the spine revealed no spasm, atrophy, guarding, or weakness. There was pain with motion and tenderness bilaterally. The tenderness reported was not found to be severe enough to be responsible for an abnormal gait or abnormal spinal contour. Flexion was zero to 20 degrees; extension was not evaluated as the Veteran declined to recline; left lateral flexion was zero to 20 degrees; left lateral rotation was zero to 25 degrees; right lateral flexion was zero to 18 degrees; right lateral rotation was zero to 30 degrees; and there was objective evidence of pain on active range of motion. There was also objective evidence of pain following repetitive motion; however, the VA examiner was unable to determine the additional limitation after three repetitive range of motion tests. In this respect, the Veteran had deferred the hyperextension range of motion testing, and the other measures were repeated only once because the Veteran stated it hurt too much to continue. It was noted that after repeating the other measures once, there was no additional loss of range of motion. Reflex examination showed normal findings except for a hypoactive ankle jerk, and sensory examination reflected normal findings. Motor examination also revealed normal findings, and Lasegue's was negative. X-ray examination showed bilateral pedicle screws at L4, L5, and S1 levels, interconnecting rods, and placement of ray cages at L5-S1 disc level and a disc spacer at the L4-L5 level. There had been L5 laminectomy. Slightly increased lucency could be seen about the left S1 pedicle screw as compared to prior plain film radiographs. There was also a trace amount of lucency associated with the right-sided screw at this level. Questionable lucency was seen associated with the other pedicle screws and the spacer and ray cages were unchanged in location. There had been increased incorporation of the right cages at the L5-S1 level and incorporation of the L4-L5 space with some continued lucency along the superior aspect which was stable. There was normal vertebral height and alignment without evidence of fracture or other sites of osteolysis. The sacroiliac joints were unremarkable, and the other disc spaces were preserved without significant degenerative change. The VA examiner diagnosed congenital stenosis L4-5 with residual mild left leg stamina weakness; urinary and erectile dysfunction complaints; and DDD status-post three surgical procedures, including laminectomy and fusion of the lumbar spine with residual decreased range of motion, nondeforming, nonrestrictive scarring. The VA examiner found there was no current indication of a chronic radiculopathy or further DDD as the 2009 MRI and CT scan showed no additional DDD, stenosis, or other factors creating nerve impingement. The VA examiner opined that the Veteran would be able to perform sedentary to light duty occupation (i.e. office duties) that gave him the opportunity to change positions frequently and that had limited bending, stooping, and light to moderate lifting requirements. The effects on the Veteran's occupation included decreased mobility, problems with lifting and carrying, lack of stamina, and urinary incontinence. The Veteran's low back disability had a severe effect on moderate to high-end recreational activities; a moderate effect on other recreational activities, chores, shopping, long-distance traveling, and exercise, a mild effect on bathing, dressing, and short-distance traveling; and prevented him from participating in sports. On and after November 1, 2008, the Veteran's low back disability is rated as 40 percent disabling. For a 50 percent rating under Diagnostic Code 5238, the evidence must show functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine, and for a 100 percent rating, there must be functional impairment comparable to unfavorable ankylosis of the entire spine. In addition, an increased rating of 60 percent is provided for under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Here, the medical evidence of record does not demonstrate functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine or the entire spine during this period. Although the February 2009 private physician found flexion and extension were very minimal due to pain, the evidence did not show that the entire cervical spine, the entire thoracolumbar spine, or the entire spine was fixed in flexion or extension. In May 2010, although the Veteran reported a very limited range of motion, he did not report that his low back was in a fixed position. On VA examination in May 2010, there was no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. Flexion was zero to 20 degrees. As such, the Board finds an evaluation in excess of 40 percent under Diagnostic Code 5238 is not warranted on and after November 1, 2008. In addition, the evidence of record does not reflect acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the 12 months applicable to the period. Therefore, an evaluation in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has considered whether the Veteran's low back disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for the appeal periods. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In February 2009, the private physician reported that flexion and extension failed to reveal any gross hypermobility at the attempted fusion region, and there was no hypermobility through the rest of the lumbar spine. In December 2010, there was no additional loss of motion after one repetition of motion testing. VA examination of the muscles of the spine in May 2010 revealed no spasm, atrophy, guarding, or weakness. Although the record shows the Veteran had pain with movement and weakness, the Board finds this is already contemplated in the disability rating assigned. The Board also recognizes the lay statements of record attesting to the Veteran's symptoms of constant pain and the effects of that pain on his daily life. The Board notes that lay persons can attest to observable symptomatology, and the statements made by the Veteran, his family members, and his friends describing his symptoms are considered to be competent evidence. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, these statements must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence demonstrates consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. Consequently, when considering the overall evidence of record, including the lay statements and medical evidence, the Board finds that the Veteran's service-connected residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion do not warrant an evaluation in excess of 40 percent for either period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5238, 5243. Extraschedular consideration and entitlement to a TDIU The Board has also considered whether the Veteran is entitled to consideration of an extraschedular rating for the periods on appeal. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a veteran's disability picture that 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, there is no demonstration in the lay or clinical evidence in this case that the Veteran's symptoms present an exceptional disability picture which renders the available respective schedular evaluations inadequate. In this respect, the record does not show that the Veteran required frequent hospitalization for problems associated with his low back other than the period already accounted for by the assignment of a 100 percent evaluation from July 8, 2008 through October 31, 2008 based on surgical or other treatment necessitating convalescence. In addition, the Board finds the factors of marked interference with employment are already contemplated in the assignment of a TDIU for both periods on appeal. The Veteran's complaints of pain and functional impairment manifested by limitation of motion are contemplated in the diagnostic code criteria for assignment of a schedular rating. Therefore, the Board finds the Veteran is not entitled to a referral for extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes that entitlement to a TDIU is already in effect for the periods on appeal. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against an evaluation in excess of that already assigned for the periods on appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 40 percent for orthopedic residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, from April 1, 2008 through July 7, 2008 is denied. Entitlement to an evaluation in excess of 40 percent for orthopedic residuals, status-post surgery, L5-S1 central disc bulge, congenital stenosis L4-5 vertebrae, S/P L4-S1 fusion, on and after November 1, 2008 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs