Citation Nr: 1321330 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 05-19 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial staged rating in excess of 10 percent for lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 (low back disability) prior to March 24, 2010, and in excess of 20 percent from March 24, 2010. 2. Entitlement to an initial rating in excess of 20 percent for neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: New York State Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from August 2000 to August 2004 and from July 2007 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Buffalo, New York. This matter was previously before the Board in December 2008, January 2011, and October 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. During the pendency of the Veteran's appeal, the Appeals Management Center (AMC), in a May 2013 rating decision, granted the Veteran service connection for neuropathy of the right lower extremity evaluated as 20 percent disabling, from March 24, 2010. As the Veteran's right lower extremity symptoms have been found to be related to the Veteran's herniated nucleus pulposus , for which the rating is on appeal, the Board will consider whether the Veteran is entitled to a compensable rating prior to March 24, 2010, or a higher initial evaluation from March 24, 2010. The issue of entitlement to service connection or a cervical spine disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to March 24, 2010, the Veteran's service-connected lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 (low back disability) was manifested by pain; objectively, she had forward flexion greater than 60 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees, no muscle spasm or severe guarding to cause abnormal gait or abnormal contour, no bladder or bowel symptoms, and no incapacitating episodes. 2. From March 24, 2010, the Veteran's service-connected connected lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 (low back disability) was manifested by pain; objectively, she had flexion greater than 30 degrees with no muscle spasm or severe guarding to cause abnormal gait or abnormal contour, no bladder or bowel symptoms, and no incapacitating episodes. 3. The competent credible clinical evidence of record is against a finding that the Veteran has left lower extremity neuropathy/radiculopathy associated with her service-connected spine disability. 4. The Veteran is service connected for right lower extremity neuropathy, evaluated as 20 percent disabling from March 24, 2010. 5. From September 27, 2006, the Veteran's service-connected connected lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 (low back disability) has been manifested by tingling and numbness in the right lower extremity which is analogous to no more than mild incomplete paralysis prior to March 24, 2010 and no more than moderate from March 24, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to March 24, 2010 and in excess of 20 percent from March 24, 2010 for lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 (low back disability) have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5235 - 5243 (2012). 2. The criteria for a rating of 10 percent and no higher, from September 27, 2006 to March 24, 2010 for right lower extremity neuropathy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for a rating in excess of 20 percent for right lower extremity neuropathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with an initial evaluation following the grant of service connection for lumbar disc derangement, herniated nucleus pulpous disability. 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). No additional discussion of the duty to notify is therefore required. VA has a duty to assist the Veteran in the development of the claim. The claims file includes VA and private medical records, and the statements of the Veteran in support of her claim, to include her testimony at a Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. VA examinations/opinions were obtained in July 2004, March 2010, and March 2011. 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 Veteran has been afforded an adequate VA examination/opinion. The reports include clinical examinations, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 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. Id. § 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. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes 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). Rating musculoskeletal disabilities 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. § 4.45. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims 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 U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales 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 below will focus specifically on what the evidence shows, or fails to show, as to the claim. Prior to March 24, 2010 The Veteran separated from service on August 30, 2004. Her back disability is rated as 10 percent disabling from August 31, 2004. The Veteran would be entitled to a higher initial evaluation if the evidence reflected that she had 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 was not greater than 120 degrees, or muscle spasm or guarding were severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A July 2004 VA examination report reflects that the Veteran reported that she "occasionally gets low back pain." Upon physical examination, she had normal gait and normal station. Flexion was 0 - 90 degrees, extension was 0 - 15 degrees, right and left lateral flexion was 0 - 25 degrees, and lateral rotation (torquing) was 0 - 35 degrees bilaterally. The examiner noted that these were all normal without tenderness. Straight leg raising ability was to 90 degrees bilaterally. There was no evidence of any major muscle group atrophy and the Veteran's reflexes were 3/3 bilaterally. No anatomical deformity of the lower extremities was noted. The examiner found that the Veteran had "intermittent" paralumbar muscle pain. The examiner also noted that the Veteran had "absolutely normal physical findings on the low back exam today. It does not give her any physical impairment. These normal findings are consistent through 3 iterations of the ranges of motion." An August 27, 2004 clinical record reflects that the Veteran had "intermittent" back pain. A June 2005 VA clinical record reflects that the Veteran reported "bladder frequency in military also had while on vacation urge incontinence at times." The Veteran testified at the September 2006 Travel Board hearing that her low back pain shoots down to her right foot and sometimes to the bottom of her feet. She stated it feels like needles and sometimes radiates to her right hip. She stated that it radiates sometimes to both legs, but most of the time it radiates to the right side. She stated that sometimes it gets numb (See Board hearing transcript page 4.). She also testified that carrying her one week old child causes pain in the lower back, as does sitting up in bed to breastfeed (See Board hearing transcript page 7.). A May 2007 record reflects that the Veteran had complaints of the lower back but that she was cleared to deploy. It was noted that an MRI of the lumbar spine showed no stenosis and an x-ray of the lumbar spine was negative. An August 14, 2007 STR reflects that the Veteran had complaints of "intermittent tingling sensation all over back since yesterday." It was noted that her back was normal to inspection. The assessment was intermittent paresthesias in the back. An August 27, 2007 individual sick slip reflects that the Veteran had an acute exacerbation of chronic back pain which was positive for parasthesias to the right. An August 27, 2007 clinical record reflects that the Veteran reported parathesis from her right hip to her right knee. She reported that her right knee had given out three times since mobilization and her symptoms had worsened with arrival on the forward operating base. The report reflects that the Veteran reported that she stopped treatment for her back in 2004 but continued to have intermittent low back pain and numbness to the right foot which was manageable with rest. She reported that she was able to go on two deployments since the injury; however, her symptoms got worse with mobilization to Fort McCoy beginning in August 2007. It was noted that she had no genitourinary symptoms. An August 2008 VA primary care attending note reflects that the Veteran was negative for urinary frequency or urgency. A November 2008 clinical record reflects that the Veteran reported that she has pain in her right hip since her fall outside a tower (in January 2002) and the pain radiates to her knee "sciatica like". An August 25, 2009 VA examination for internal medicine reflects that there was no history of urinary hesitancy, frequency, incontinence, abnormal flow urgency, or nocturia. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's herniated nucleus pulposus/lumbar disc derangement disability. The evidence of record is against a finding that the Veteran's forward flexion was limited to 60 degrees, or that her combined range of motion was limited to 120 degrees. The evidence of record is also against a finding that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. The Board has considered the Veteran's complaints of pain; however, even considering her complaints of pain, she is still not entitled to a rating in excess of 10 percent. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id at 43; see 38 C.F.R. § 4.40. The Board has also considered whether the Veteran is entitled to evaluations for neurologic abnormalities. Under the current regulation for the spine, associated objective neurologic abnormalities are evaluated under an appropriate diagnostic code. There is no competent credible evidence of record that the Veteran has bowel or bladder impairment, or left lower extremity radiculopathy due to her service-connected spine disability. A June 2005 VA clinical record reflects that the Veteran reported "bladder frequency in military also had while on vacation urge incontinence at times." However, this is no competent clinical opinion which associates any such bladder problems with her service-connected disability. Moreover, the Veteran has stated that her urinary problems began in 2001, which was prior to her 2002 spine injury. In addition, August 27, 2007, August 2008, and August 2009 VA records are also against a finding that the Veteran had urinary frequency, or urinary urgency. The Board has also considered whether the Veteran is entitled to a separate rating for radiculopathy. As noted above, the July 2004 VA examination report reflects that the Veteran reported that she "occasionally gets low back pain." The examiner also noted that the Veteran had "absolutely normal physical findings on the low back exam today. The Board has considered the Veteran's testimony. The Veteran testified at the September 2006 Travel Board hearing that her low back pain shoots down to her right foot and sometimes to the bottom of her feet. She stated it feels like needles and sometimes radiates to her right hip. She testified that it radiates sometimes to both legs, but most of the time it radiates to the right side. She further stated that sometimes it gets numb. (See Board hearing transcript page 4.) The Veteran was subsequently diagnosed with mild right S1 radiculopathy in 2011. The Board notes that there were no objective findings of right leg radiculopathy during this rating period; however, as the Veteran reported symptoms which were subsequently diagnosed as related to right S1 radiculopathy, the Board finds, in giving the benefit of the doubt to the Veteran, that she had mild right radiculopathy in September 2006; thus, she is entitled to a 10 percent rating, and no higher, under DC 8520. The evidence of record, as noted below, is against a finding of left radiculopathy; thus, a rating for such is not warranted. Moreover, the evidence does not support a finding that the Veteran's right radiculopathy was more than mild. In this regard, the Board notes that the radiculopathy symptoms were noted to be intermittent, the Veteran deployed twice prior to July 2007, the Veteran was medically cleared for deployment in 2007, and her symptoms were manageable with rest. Finally, the Board finds that there is also no competent credible evidence of incapacitating episodes as defined by VA regulation. 38 C.F.R. § 4.71a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). From March 24, 2010 The Veteran's herniated nucleus pulposus at L4-5, L5-S1/lumbar disc derangement is evaluated as 20 percent disabling from March 24, 2010. A higher evaluation would be warranted if the evidence reflected that the Veteran had forward flexion of the thoracolumbar spine 30 degrees or less, or ankylosis of the entire thoracolumbar spine. The evidence, as discussed below, is against such a finding. A March 2010 VA examination report for the Veteran's lower back reflects that there was no history of urinary incontinence, urinary urgency, urinary retention requiring catherization, urinary frequency, fecal incontinence, or obstipation. The Veteran reported numbness, paresthesias, and leg or foot weakness. There were no falls and no unsteadiness. The Veteran further reported fatigue, decreased motion, stiffness, weakness, spasm, and pain. She reported aching and throbbing pain which was severe and lasted hours from 1 to 6 days a week. She reported radiation of the pain into the right lower limb. It was noted that there were no incapacitating episodes, no use of devices and aids, and no limitation to walking. Upon clinical examination, the Veteran had flexion to 50 degrees, extension to 19 degrees, lateral flexion to 22 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. There was objective evidence of pain following repetitive motion, but no additional limitation of motion. The March 2010 VA examination report reflects that there was positive Laseque's sign on the right. The Veteran was employed doing primarily desk work and did not report any time lost from work in the past 12 month period. The diagnosis was lumbar disc derangement of mild to moderate severity. It had a mild effect on chores, shopping, recreation, and traveling, a moderate effect on sports and exercise, and no effect on feeding, bathing, dressing, toileting, or grooming. A May 2011 VA examination report reflects that the Veteran reported a nine year history of intermittent, diffuse pain, numbness, and tingling of the left upper extremity and both lower extremities, especially on prolonged standing and in bad weather. The Veteran was not taking any medication. Upon clinical examination, the Veteran had normal motor ability, and normal deep tendon reflexes. The examiner found that the Veteran had ulnar neuropathy impingement on the left ulnar nerve in the cubital tunnel; thus, it is not clinically associated with her service-connected herniated nucleus pulposus of L4-5, L5-S1. The May 2011 examiner found that the Veteran had S1 radiculopathy which was impingement on the S1 nerve foot in the lumbosacral spine because of osteoarthritis. It was noted to be mild right S1 radiculopathy. It was further noted that the Veteran was not unsteady, did not use a brace or assistive device, and that there have been no incapacitating episodes. A June 29, 2011 women's health clinical new patient note genitourinary division, reflects that the Veteran denied frequency. A June 29, 2011 primary care comprehensive history and physical record reflects that the Veteran was negative for frequency or hesitancy with urination. A June 2011 VA examination report reflects that the Veteran was working as a inventory manager. It was noted that she was able to perform her activities of daily living and her usual occupation of inventory manager. It was noted that the Veteran complained of "on and off low back pain" which started in January 2002 when she fell from a guard tower. She reported that the pain radiates to the right posterior hip, but she has no pain in the lower legs. It was noted that there was no history of flare-ups or incapacitating episodes in the past 12 months. The Veteran complained of tingling in the lower back and right hip area and right foot. There was no history of bowel incontinence, but the Veteran had a history of "on and off urinary incontinence". The Veteran was able to walk without assistive devices, did not wear a back brace, and had no history of falls or unsteadiness. The Veteran walked with a normal gait. There was no guarding or spasm of the lumbar spine, and no ankylosis or scoliosis. Forward flexion was from 0 to 80 degrees, extension was from 0 to 15 degrees. Lateral flexion was from 0 to 30 degrees bilaterally. Lateral rotation was from 0 to 30 degrees bilaterally. There were no palpable defects in the lower back. Neurologic examination showed normal motor and normal deep tendon reflexes. There was sensation of the dorsum of the right foot, but the Veteran complained of a tingling sensation. There was no muscle atrophy. The Lasegue test was negative bilaterally. There was no additional functional loss due to pain, weakness, or lack of endurance after three repetitive motions. The diagnosis was lumbosacral musculoligamental strain. The current severity was noted to be "mild." A March 2013 VA examination report reflects that the Veteran's urinary incontinence (urgency and stress of unknown etiology) is not progressive. It was noted that it "has resolved at present and occurs on and off (according to the Veteran once in a blue moon.)" It was noted that it did not affect her ability to work. It was noted that the Veteran was diagnosed in 2001. The Veteran reported that she had urinary incontinence (urgency/stress) while training for military service in 2001 and has had throughout her career off and on. At present the problem has resolved except once in a blue moon." It was noted that the etiology was idiopathic. An April 2013 VA examination report reflects that the Veteran had forward flexion to 70 degrees with pain beginning at 60 degrees. She had extension to 15 degrees, with pain beginning at 10 degrees. She had bilateral lateral flexion to 25 degrees, with pain beginning at 20 degrees. She had bilateral lateral rotation to 25 degrees with pain beginning at 20 degrees. The Veteran was able to perform three repetitions. Post test motion was to 60 degrees flexion, 10 degrees extension, 20 degrees lateral flexion bilaterally, and 20 degrees lateral rotation bilaterally. There was tenderness along the lumbar spinous processes and paravertebral muscles. There was guarding or muscle spasm of the back, but it did not result in abnormal gait or spinal contour. The Veteran had normal muscle strength of the lower extremities, and had no muscle atrophy. She had normal reflexes. She had decreased lower leg/ankle and foot/toes sensation on the right only. The examiner found that she had intermittent moderate right lower extremity pain, paresthesias and/or dysesthesias, and numbness. She had no other signs or symptoms of radiculopathy. Her left side was not affected. It was further noted that the Veteran had no other neurologic abnormalities or findings related to a back disability. The examiner noted that the Veteran had at least one week but less than 2 weeks of incapacitating episodes over the past 12 months; however, there are no clinical records associated with the claims file which reflect when this was or what physician ordered it. Based on the foregoing, the Board finds that a rating in excess of 20 percent for the Veteran's herniated nucleus pulposus/lumbar disc derangement disability is not warranted. In addition, a rating in excess of 10 percent for the Veteran's right lower extremity neuropathy is not warranted prior to March 24, 2010, and a rating in excess of 20 percent is not warranted from March 24, 2010. The evidence is also against a finding of left lower extremity radiculopathy, or bowel or bladder symptoms due to her service-connected back disability. With regard to bladder symptoms, the evidence of record does not support a finding that the Veteran has bladder symptoms due to her low back disability. Not only did the Veteran state that the symptoms began in 2001, which was before her January 2002 fall, but the March 2013 examiner found that they were idiopathic in nature (i.e. unknown etiology), and the April 2013 VA examiner found that there were no neurologic abnormalities or findings, other than right leg symptoms, related to the Veteran's back disability. (In a May 2013 decision, the AMC granted service connection for stress urinary incontinence, evaluated as 20 percent disabling effective from June 4, 2011; however, such a grant was based on the Veteran's assertion that it began during active service.) With regard to incapacitating episodes, the Veteran is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS, whichever is more beneficial to the Veteran. Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a 10 percent rating. As the Veteran is already in receipt of a 20 percent rating under the General Formula, it is more beneficial for her to be rated under the General Formula. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra-schedular The Board has considered that the Veteran has several service-connected disabilities and has determined which symptoms are attributable to a service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Ordinarily, the VA 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 extra-schedular disability rating would be 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) . The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected spine disability. The criteria consider that pain causes limitation of motion, and that nerves may be affected by a spine disability. All neurologic symptoms clinically related to the Veteran's disability are considered under the rating criteria. The Board has also considered the Veteran's statements; however, the evidence does not reflect that any reported symptoms caused frequent hospitalization or marked interference with work. As noted above, the Veteran was on able to be on active duty 2007 and 2008, to include deployment. The March 2010 VA examination report reflects that she was employed doing primarily desk work and did not report any time lost from work in the past 12 month period. The June 2011 VA examination report reflects that the Veteran was able to perform her activities of daily living and her usual occupation of inventory manager. In May 2012 correspondence, the Veteran noted that she was out of the country on a job assignment. The Board notes that there was one week of incapacitating episodes noted in the April 2013 VA examination report, but the examiner also noted that the Veteran's spine condition does not impact her ability to work. Therefore, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence of record, as noted above, is against a finding that a claim for TDIU has been reasonably raised. The records are negative for a finding that the Veteran was unable to maintain substantial gainful employment due to service-connected disability. Not only are the records negative for such a finding, but they reflect that she was able to obtain and sustain employment. Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. ORDER Entitlement to an initial staged rating in excess of 10 percent for lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 (low back disability) prior to March 24, 2010, and in excess of 20 percent from March 24, 2010 is denied. Entitlement to a 10 percent rating, and no higher, for right lower extremity neuropathy/radiculopathy as associated with the service-connected connected lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 is granted from September 27, 2006 to March 24, 2010. Entitlement to a rating in excess of 20 percent for right lower extremity neuropathy/radiculopathy as associated with the service-connected connected lumbar disc derangement/herniated nucleus pulposus at L4-5, L5-S1 from March 24, 2010 is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs