Citation Nr: 1321043 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 08-39 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected degenerative disc disease, L5-L5 and L5-S1 (lumbar spine disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from February 2002 to April 2006. This appeal to the Board of Veterans' Appeals (Board) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for a lumbar spine disability and assigned an initial noncompensable rating, effective April 16, 2006, the day after the Veteran was discharged from service. By a June 2007 rating decision of the RO in Roanoke, Virginia, the initial rating was increased to 10 percent, effective April 16, 2006. The RO in Waco, Texas, currently has jurisdiction of the claims file. FINDING OF FACT The Veteran's service-connected degenerative disc disease, L5-L5 and L5-S1, is manifested by motion limited to, at worst, 65 degrees of forward flexion and 190 degrees of combined range of motion; without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, favorable or unfavorable ankylosis of any part of the spine, neurological impairment, or incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected degenerative disc disease, L5-L5 and L5-S1, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant The Veteran's claim arises from her disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Veteran was afforded VA examinations in March 2007 and April 2012. The examiners reviewed the treatment records in the claims file, considered the Veteran's history and lay reports, and described her disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran has not indicated that she was seen regarding her disability by any provider or at any time other than the treatment reflected in the current records on file. The Veteran did not respond to a RO letter dated in July 2009 seeking identification and authorization for any outstanding relevant private treatment records. Therefore, all identified and authorized post-service treatment records available and relevant to the issue on appeal have been requested or obtained. Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). By the May 2007 rating decision on appeal, the Veteran's lumbar spine disability was initially rated as noncompensably disabling, effective April 16, 2006, the day after she was discharged from service. By a June 2007 rating decision, the initial rating was increased to 10 percent, effective April 16, 2006. The Veteran's lumbar spine disability is currently rated under DC 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a, DC 5242. However, under the current regulations, all disabilities of the spine, regardless of the diagnosis, are rated under the General Rating Formula 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 the residuals of injury or disease. 38 C.F.R. § 4.71a, DC 5235, 5236, 5238, 5239, 5240, 5241, 5242 (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a total rating is warranted for unfavorable ankylosis of the entire spine. 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. Id, Note 2. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note 1 of the General Rating Formula for Diseases and Injuries of the Spine directs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under the appropriate criteria. Id, Note 1. Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124a, DC 8520. A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve, and a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis, and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a maximum 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest and treatment "prescribed by a physician." Id. However, as discussed below, there is no evidence that the Veteran has been prescribed bedrest for any length of time, and the Veteran does not assert otherwise. Thus, the Board finds that further consideration of the rating criteria contemplating IVDS is thus not required. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2012). For traumatic arthritis, DC 5010 directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5010. However, as discussed below, the Veteran's limitation of motion is compensable, and the Board finds that further consideration of DCs 5003 and 5010 is thus not required. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Private physical therapy records dated from January 2007 to May 2007, specifically, a treatment summary dated in April 2007; indicate that the Veteran attended 16 sessions of therapy for her back pain. The therapist reported that the Veteran asserted that: she felt no pain approximately 50 percent of the time; her worst pain was rated as a five on a ten-point pain scale, depending upon the activity; prolonged activity resulted in fatigue and most negatively impacted her pain; and exercise performance usually decreased pain when exacerbated. The therapist reported that the Veteran was independent and utilized more appropriate lifting techniques and would benefit from additional sessions and the use of a transcutaneous electrical nerve stimulation (TENS) unit. On VA examination in March 2007, the Veteran reported that she had low back strain related to a motor vehicle accident in March 2003. She reported that she treats her low back pain, with fair results, with over-the-counter medication and prescription pain medication, which causes stomach upset. On physical examination, the examiner noted that there was no IVDS or flare-ups of spinal disease; and that the Veteran's lumbar and thoracic area that became stiff and more painful with staying in one position for too long. She described her pain as aching and sharp with certain positions, and demonstrated tenderness to palpation. There was guarding of movement and tenderness on palpation over the T-12 and L2-5, as well as the bilateral sacroiliac joints, without spasm. Normal curvatures were maintained. Results of motor, sensory, and reflex examinations were normal, and there was negative straight leg raising. She demonstrated forward flexion to 85 degrees, with pain beginning at 65 degrees; extension to 30 degrees, with pain beginning at 20 degrees; and right and left lateral flexion and rotation to 30 degrees, without pain. She was diagnosed with thoracolumbar back strain, and the examiner noted that such had no effect on her ability to groom, attend to the wants of nature, dress, bathe, and feed herself; mild effects on her ability to drive, travel, participate in recreation, and shop; moderate effects on her ability to exercise and do chores; and severe effects on her ability to participate in sports. The Veteran reported that she was not working and that the reason for such was that she was discharged from service due to pregnancy and had an 8-month old infant. Private chiropractic records dated from March 2007 to April 2008, specifically, an April 2008 treatment summary; indicate that the Veteran was seeking care for the management of lumbago. The chiropractor wrote that the Veteran was achieving excellent results in decreasing pain and muscle spasm, as well as improving overall muscle function with stimulating garments. Private results of magnetic resonance imaging (MRI) dated in April 2007 revealed mild degenerative changes at the L4-L5 and L5-S1. Treatment records dated in June 2007 indicate that the Veteran complained of constant pain, worse with bending, walking, and with certain kinds of physical motion; rated as a seven on a ten-point pain scale. She reported that her back pain sometimes woke her from sleep. She reported a plateau since ending physical therapy. Physical examination revealed normal thoracic kyphosis and lumbar lordosis, with tenderness to palpation. Her muscles and reflexes were normal and she demonstrated a negative straight leg raise. The chiropractor diagnosed the Veteran with mid to low back pain with an occasional catching sensation, giving her a stabbing sensation in the posterior thighs. She was completely neurologically intact and her studies were pristine. Treatment records dated in April 2008 indicate that the Veteran complained of a significant amount of back pain, rated as a five on a ten-point pain scale, with four or five momentary episodes of sharp left leg pain, precipitated by sitting too long and relieved by standing. Physical examination revealed that the Veteran was neurovascularly intact as to the lower extremities. The Veteran's father, in a May 2007 statement, asserted that the Veteran was in excellent physical health prior to service and described her success in basic training, as well as her in-service injuries and pain. He reported that when he saw the Veteran in 2006, for Christmas, she was in considerable pain related to her lower back, among other ailments. He reported that he saw her again in 2007 and noticed that she was a little hunched over and did not seem to be getting her strength back. In essence, he reported that the Veteran was not the same person as she was and was short of breath and unable to work on her car as a hobby or be as active as she used to be. In her April 2008 Notice of Disagreement (NOD), the Veteran reported that she has constant pain radiating from her back to her legs, and is not able to lift loads in excess of 30 pounds. In an April 2008 statement, the Veteran's spouse described the Veteran's in-service athletic abilities and reported that he witnessed her struggle with back pain after the in-service motor vehicle accident which has continued. In an April 2008 statement, the Veteran's mother wrote that the Veteran is in constant pain, from her back, and no longer participates in the athletic activities she once did, including working on her classic car. She reported that the Veteran has problems with lifting, standing after sitting for a long period of time, driving, walking more than a block or so, bending over, and normal everyday activities. In her December 2008 Substantive Appeal, the Veteran argued that while her March 2007 VA examination report revealed no spasm or and almost normal range of motion, she had been taking prescription pain medication and muscle relaxants. She asserted that she has constant pain, shooting down her legs. She reported that sometimes her pain is so bad that she is unable to push a brake or gas pedal in a vehicle. She reported that her service-connected lumbar spine disability has severely limited her range of motion and drastically affected her life style. She asserted that she does not believe that she can compete in the civilian work force effectively and that her condition will ever improve to the extent that her earning capacity will be restored. In April 2009, the Veteran underwent VA examination in order to adjudicate her claim of entitlement to service connection for a cervical spine disability, not currently on appeal. However, the examiner did note that there was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness as to the thoracic spine; and that there were no motor, sensory, or reflex abnormalities as to the lower extremities. On VA examination in April 2012, the Veteran reported continued low back pain, self-treated with over-the-counter medication. She rated her pain as a six on a ten-point pain scale. She denied that any flare-ups impacted the function of her spine. She presented without assistive devices. She demonstrated forward flexion to 75 degrees, with pain at 75 degrees; extension to 20 degrees, with pain at 20 degrees; and right and left lateral flexion and rotation to 25 degrees, with pain at 25 degrees. The Veteran was able to perform repetitive testing, and after such, demonstrated 70 degrees of forward flexion, 20 degrees of extension, and 25 degrees of right and left lateral flexion and rotation. The examiner reported that the Veteran had additional limitation of range of motion and functional loss and/or functional impairment of the spine after repetitive use, and described such as less movement than normal and pain on movement. There was guarding and muscle spasm present, but not enough to result in an abnormal gait or spinal contour; and normal muscle strength, hypoactive reflexes, and normal sensation. There was positive straight leg raising, bilaterally. There was no radicular pain or other signs of symptoms due to radiculopathy, and there were no other neurological abnormalities such as bladder or bowel problems. There was no IVDS. There were no scars or other pertinent findings, and this examiner concluded that X-ray examination was silent for arthritis. Based on the evidence of record, the Veteran's lumbar spine disability does not warrant an initial rating in excess of 10 percent. As noted above, to warrant a higher rating than the 10 percent rating assigned, 20 percent, under the General Rating Formula, the Veteran's lumbar spine disability would need to be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. On VA examination in March 2007, she demonstrated forward flexion to 85 degrees and combined range of motion to 235 degrees; and on VA examination in April 2012, she demonstrated forward flexion to 75 degrees and combined range of motion to 195 degrees. Thus, her forward flexion was greater than 60 degrees and her combined range of motion was greater than 120 degrees. While there were complaints and findings of spasm and guarding, there was no evidence of such severe enough to result in an abnormal gait or abnormal spinal contour. Further, while there was no evidence of more severe limitation of motion, there was also no evidence of favorable ankylosis of the entire thoracolumbar spine, as is contemplated for a 40 percent rating; unfavorable ankylosis of the entire thoracolumbar spine, as is required for a 50 percent rating; or evidence of unfavorable ankylosis of the entire spine, as is required for a 100 percent rating. Thus the General Rating Formula may not serve as a basis for an initial rating in excess of 10 percent. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board is required, pursuant to DeLuca, to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion. While in the present appeal there is indeed evidence of pain and related functional loss; there is no indication that such results in functional loss greater than that contemplated by the 10 percent rating. 38 C.F.R. §§ 4.40, 4.45. Specifically, on VA examination in March 2007, considering where her pain began, she demonstrated forward flexion to 65 degrees and a combined range of motion of 205 degrees. On VA examination in April 2012, considering where her pain began, she demonstrated forward flexion to 75 degrees and a combined range of motion of 195 degrees. At that time, after repetitive range of motion testing, she demonstrated forward flexion to 70 degrees and combined range of motion to 190 degrees, such representing her additional functional loss. The examiner noted that she had pain on movement and less movement than normal. However, her forward flexion was still greater than 60 degrees and her combined range of motion was still greater than 120 degrees. There was still no evidence of pain and related functional loss creating spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. In essence, even considering the Veteran's pain and related functional loss, her lumbar spine disability warrants an initial 10 percent rating. Thus, the Board finds that the currently assigned 10 percent rating already contemplates any pain on motion, and related functional loss, and does not warrant an additional rating under DeLuca. Also as required, the Board has considered separate ratings for neurologic and orthopedic manifestations of the Veteran's lumbar spine disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. However, at no time during the appellate period has the Veteran been diagnosed with any neurological abnormalities. While the Veteran reported a stabbing sensation in the posterior thighs during private chiropractic care in June 2007; her muscles and reflexes were normal, with a negative straight leg raise, and she was deemed "completely neurologically intact." During another episode of private chiropractic treatment in April 2008, while she reported momentary episodes of sharp left leg pain, physical examination revealed that the Veteran was neurovascularly intact. While the Veteran, in her December 2008 Substantive Appeal, reported that she had constant shooting pain down her legs at the time of her March 2007 VA examination, results of motor, sensory, and reflex examinations at that time were normal and there was negative straight leg raising. The Board does note that the VA examiner, in April 2012, noted a positive straight leg raising, bilaterally; however, the examiner also specifically reported that there was no radicular pain or other signs of radiculopathy, and no other neurological abnormalities. The examiner did not diagnose a neurological abnormality, even considering the positive straight leg raising. It is significant that the General Formula specifically provides for symptoms such as pain, whether or not it radiates. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. There is only lay evidence of radiating pain. There is no clinical evidence of radiculopathy of the bilateral lower extremities. Thus, the Board finds that there are no separately diagnosed neurologic abnormalities, including bowel or bladder impairment, shown to be caused by or part of the Veteran's lumbar spine disability and separate ratings are not warranted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Based on the medical and lay evidence discussed above and the applicable law, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for her lumbar spine disability. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully reviewed and considered the Veteran's statements, and those of her family members, regarding the severity of her lumbar spine disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned rating reflects. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, supra; see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability, productive of the symptoms reported by the Veteran and recorded during VA examinations and private treatment and assessment. Such symptoms include pain, tenderness, spasm, radiation, and decreased motion. The Veteran has not reported, and there is no medical evidence of symptoms outside of the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's lumbar spine disability and referral for consideration of an extraschedular rating is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable. The Veteran, in her December 2008 Substantive Appeal, asserted that she does not believe that she can compete in the civilian work force effectively and that her condition will ever improve to the extent that her earning capacity will be restored. However, no party, neither the Veteran nor any treatment professionals or VA examiners, have asserted that her lumbar spine disability currently renders the Veteran unemployable. She has reported, during her two VA examinations, that she is raising children at home on a full-time basis. Therefore, the Board finds that no further consideration of a TDIU is warranted at this time. ORDER An initial rating in excess of 10 percent for service-connected degenerative disc disease, L5-L5 and L5-S1, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs