Citation Nr: 1322166 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-44 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for low back strain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which increased the evaluation for service-connected low back strain from zero percent to 10 percent, effective July 31, 2008, the date of receipt of the increased rating claim. Although the September 2008 rating decision granted an increased evaluation for low back strain, the Board notes that 10 percent is not the maximum rating available for this service-connected disability. As such, the claim remains in appellate status, and the Board has characterized the issue 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). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Throughout the rating period on appeal, the service-connected low back strain has been manifested by pain and decreased limitation of motion, not productive of functional impairment comparable to 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, and without demonstration of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for low back strain 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 Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 August 2008, 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. Further, the August 2008 letter 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). 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. Duty to Assist With regard to the duty to assist, the Veteran's claims file contains service treatment records, VA examination reports, and identified private treatment records. In addition, the Veteran underwent VA examination in September 2008 and March 2011 in connection with his claim. 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). In this case, the Board finds that when taken together, the VA examinations are adequate as they were predicated on the results of adequate and complete physical examinations. Additionally, clinical findings pertinent to the applicable criteria for adjudicating the Veteran's increased evaluation claim were provided. Further, the VA examinations provided findings relevant to the Veteran's functional impairment in daily life. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Hence, the examinations 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). 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 claim. Essentially, all available evidence that could substantiate the claim 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, 4.45; 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. 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. 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, in March 2009, January 2011, and March 2011, the Veteran reported tingling and pain radiating down his legs. However, the Board notes that service connection has been separately established for peripheral neuropathy of the left lower extremity and right lower extremity associated with diabetes mellitus, type II. In addition, the record does not demonstrate diagnoses of peripheral neuropathy in relation to low back strain. 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 claim on appeal. An August 2008 VA treatment record shows the Veteran had tenderness in the right lower back over the lumbar muscles with full range of motion. In September 2008, the Veteran underwent VA examination in connection with his claim. The Veteran reported that his back hurt periodically and that previously he had had acupuncture and physical therapy, which seemed to ameliorate his symptoms for some time. However, in the last three to four years his symptoms had worsened. The Veteran reported that the pain was a seven to eight out of 10, but he denied radiation of pain. He reported stiffness, weakness, numbness, and constant pain in his lower back. The pain was described as sharp, aching, and dull. During a flare-up, the Veteran stated that the pain went up to a 10 but that he had no additional limitation of function. He estimated that he could walk up to one-fourth of a mile before having to stop. He was not unsteady, did not fall, and he was able to walk and transfer. The Veteran did not report any bladder or bowel complaints or erectile dysfunction. The Veteran stated that he had lost no time from work due to his back. He stated that he occasionally bowled but could no longer bowl as many games. The Veteran was able to feed himself, groom himself, bathe himself, use the toilet, do his own dressing and undressing, and he worked as a school bus driver. On physical examination, the lumbosacral spine had no tenderness, no swelling, no deformity, no crepitus, and no laxity. Flexion was to 95 degrees actively, passively, and after fatiguing, all with pain. Extension was to 30 degrees actively, 35 degrees passively, and 37 degrees after fatiguing, all with pain. Right and left lateral flexion was to 42 degrees actively, 45 degrees passively, and 47 degrees after fatiguing, all with pain. Right and left lateral rotation was to 40 degrees actively, 42 degrees passively, and 45 degrees after fatiguing, all with pain. There was no decrease in the range of motion or joint function that was additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use of any of the joints tested. The Veteran's gait was normal and a straight leg raise test was negative, bilaterally. X-ray examination showed a mild scoliosis without other problems. The disk spaces and vertebral body heights were well preserved. There was no spondylolysis and no spondylolisthesis. The VA examiner diagnosed chronic back strain with congenital mild scoliosis. A November 2008 VA treatment record indicates the Veteran was having intermittent back pain, especially when driving and taking long walks, and increased with prolonged sitting and walking. He wore a back brace while driving and used heating pads at night. A December 2008 VA treatment record reflects that the Veteran stood with a noted scoliotic curve in the lower back with left iliac crest higher than the right. Flexion was described as 70 percent with pain across the lower back; extension was 10 percent with pain across the lower back, greater on the right side; bilateral rotation was 40 percent with pain across the lower back; and bilateral side bending was 60 percent with pain across the lower back. The Veteran was fitted with a large lumbosacral support. A January 2009 private treatment record reflects that the Veteran was limited in walking for more than five to ten minutes, standing erect for long periods of time, and experienced greater pain while driving a school bus on uneven roads and bouncing. On objective observation, the Veteran was in an upper trunk lean to the left with some spasms in the right lumbar PS while standing. Lumbar flexion was described as 10 percent of full motion while standing and 50 percent of full motion when sitting. Side bending movements to the right was to 10 percent of full motion, to the left was 20 percent of full motion, and extension movements were 20 to 30 percent of full motion. On palpation, there was tenderness in the right lumbar PS at L2-L3 with increased muscle turgor. The private physician reported that the Veteran had spasms in the right lumbar region, decreased range of motion, and problems with work-related and home-related activities. X-ray examination was unremarkable. An additional 2009 private treatment record shows the Veteran's range of motion was described as 10 to 50 percent throughout the lumbar spine with tightness in the hips as well. The Veteran had tightness and spasm in the right lumbar paraspinals. A February 2009 private treatment record indicates the Veteran's range of motion had improved by 10 percent and that he was able to perform a good gym program for strengthening and flexibility. In his March 2009 Substantive Appeal, the Veteran reported that he still had chronic lower back pain since injuring his back during active duty. He stated that he had chronic back pain while walking, driving, going up and down stairways, during cold days and nights, and with prolonged sitting. He indicated that he had trouble moving and bending at times, pain when coughing, and tingling in his legs. The Veteran reported that he wore a back brace and received nightly treatments. In June 2009, the Veteran reported a decrease in his ability to perform daily activities of living due to his back pain. An additional June 2009 VA treatment shows the Veteran complained of lower back pain that affected both sides, and he described it as a spasm that occurred mainly while he was driving. A November 2009 VA treatment record indicates the Veteran had good range of motion, with some mild tenderness to palpation of the bilateral lower back. The assessment was that the Veteran's back was stable and improved. A May 2010 magnetic resonance imaging scan (MRI) reflected an impression of L5/S1 bulge with left central/foraminal annular tear. There was minimal anterior listhesis L5 on S1 and minimal spondylosis. There was mild to moderate right foraminal narrowing at L5/S1 and facet arthrosis was most pronounced at L5/S1. There were no osteoblastic lumbar metastases. A January 2011 VA treatment record indicates the Veteran complained of worsening pain. The pain was described as sharp, heavy, throbbing, stinging, creaking, sore, and constant in nature. Sometimes he experienced numbness and tingling shooting down his legs and both feet. The Veteran reported that any activity such as standing, walking, sitting for too long, bending, exercise, climbing stairs, touch, cold weather, weather changes, emotional stress, and sexual activity increased his back pain. Sleep and medication decreased his pain. He complained that sometimes he experienced weakness in both legs and had difficulty walking. On physical examination, the Veteran ambulated without any assistive device and with a steady gait and normal balance. The Veteran had limited flexion and extension of his low back. There was significant tenderness at the low back in the midline and paravertebral region around L4-S1. There was no tenderness over the S1 joint or hip joint. He had decreased muscle strength and straight leg raising test was questionable positive. The assessment was chronic low back pain, lumbar facet arthropathy, and possible lumbar radiculopathy. The Veteran underwent additional VA examination in March 2011. It was noted that the Veteran's symptoms had progressively worsened since their onset. There was no history of hospitalization or surgery, spine trauma, spine neoplasm, or spine condition flare-ups. The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, spasm, and spine pain. He described moderate to severe pain in the low back lasting hours and occurring daily. There was aching radiation down the left leg. There were no incapacitating episodes of spine disease and the Veteran had no limitation to walking. Physical examination revealed normal posture and a normal head position, symmetrical in appearance. The Veteran's gait was normal, and there was no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, or scoliosis. There was no cervical spine or thoracolumbar spine ankylosis. Examination of the thoracolumbar sacrospinalis revealed no spasms, no atrophy, no guarding, no pain with motion, no tenderness, and no weakness. Muscle spasm, localized tenderness, and guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Flexion was to 80 degrees, extension was to 30 degrees, and left lateral flexion, left lateral rotation, right lateral flexion, and right lateral rotation were all to 30 degrees. There was no objective evidence of pain on active range of motion and no objective evidence of pain following repetitive motion. The VA examiner also noted that there were no additional limitations after three repetitions of range of motion. Reflex examinations were normal, and the VA examiner found range of motion was normal. The Veteran reported that he was employed as a school bus driver full time. It was noted that the Veteran had lost a total of 22 days of work due to back pain. The VA examiner diagnosed low back strain and found the Veteran's low back strain had no effect on his usual occupation and no effect on usual daily activities. A September 2011 VA treatment record shows that range of motion was limited due to pain. Range of motion was recorded as -25 degrees flexion and -10 degrees extension. The Veteran's low back strain is currently rated as 10 percent disabling. For a 20 percent rating under Diagnostic Code 5237, the evidence must show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. In addition, an increased rating of 20 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 two weeks but less than four weeks during the past 12 months. Here, the medical evidence of record does not demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. On examination in August 2008, the Veteran had full range of motion. On VA examination in September 2008, flexion was to 95 degrees actively, passively, and after fatiguing. Extension was to 30 degrees actively, 35 degrees passively, and 37 degrees after fatiguing. Right and left lateral flexion were to 42 degrees actively, 45 degrees passively, and 47 degrees after fatiguing. Right and left lateral rotation were to 40 degrees actively, 42 degrees passively, and 45 degrees after fatiguing. When combined, the range of motion of the thoracolumbar spine, at its worst, was 289 degrees. The March 2011 VA examination reflects that flexion was to 80 degrees, extension was to 30 degrees, and left lateral flexion, left lateral rotation, right lateral flexion, and right lateral rotation were all to 30 degrees. When combined, the range of motion of the thoracolumbar spine exceeded 120 degrees. Additionally, the Board finds the medical evidence does not indicate 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. Although X-ray examination in September 2008 revealed a mild scoliosis, the Veteran's gait was deemed normal, and the VA examiner diagnosed chronic back strain with congenital mild scoliosis. In this respect, the Board notes that congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2012). Further, although the December 2008 VA treatment record indicates the Veteran stood with a noted scoliotic curve in the lower back, there is no indication whether the condition was due to muscle spasm or guarding or a congenital defect. Similarly, the January 2009 private treatment record shows the Veteran was in an upper trunk lean to the left with some spasms in the right lumbar PS while standing. However, the record does not show a specific finding of scoliosis. Here, the Board finds the March 2011 VA examination findings more probative with respect to whether the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The VA examiner specifically found that muscle spasm, localized tenderness, and guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour. The Veteran's gait was deemed normal, and there was no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, or scoliosis. Examination of the thoracolumbar sacrospinalis revealed no spasms, no atrophy, no guarding, no pain with motion, no tenderness, and no weakness. As such, the Board finds an evaluation in excess of 10 percent under Diagnostic Code 5237 is not warranted. 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 two weeks but less than four weeks during the past 12 months. In fact, the record does not show that a VA physician or private physician prescribed bed rest at any time during the pendency of the appeal. Therefore, an evaluation in excess of 10 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board notes the December 2008 VA treatment record reflects flexion was 70 percent; extension was 10 percent; bilateral rotation was 40 percent; and bilateral side bending was 60 percent. In addition, the January 2009 private treatment record notes flexion was to 10 percent of full motion while standing and to 50 percent while sitting. Side bending movements to the right were to 10 percent of full range of motion, and side bending movements to the left were 20 percent of full range of motion. Extension movements were found to be 20 to 30 percent of full range of motion. Similarly, the January 2009 private treatment record shows the Veteran's range of motion was 10 to 50 percent throughout the lumbar spine. However, for VA compensation purposes, measurements of the thoracolumbar spine are defined in degrees, and the Board cannot determine the comparable measurements provided by these records without specific, defined degrees of range of motion. Therefore, the Board finds such evidence to be of little probative value in determining the severity of the Veteran's low back strain. The Board has also considered whether the Veteran's low back strain resulted in a level of functional loss greater than that already contemplated by the assigned rating. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In September 2008, the VA examiner noted the Veteran had no additional limitation of function during a flare-up. There was also no additional decrease in the range of motion or joint function due to pain, fatigue, weakness, or lack of endurance following repetitive use. In March 2011, there were no additional limitations after three repetitions of range of motion, and in fact, the VA examiner found range of motion was normal. VA examination of the muscles of the spine in March 2011 revealed no spasms, atrophy, guarding, pain with motion, tenderness, or weakness. As such, the Board finds all of the Veteran's symptoms and the resulting level of function loss are contemplated in the disability rating assigned. In addition, the Board recognizes the lay statements of record attesting to the Veteran's symptoms of pain and the effects of that pain on his daily life. Lay persons can attest to observable symptomatology, and the statements made by the Veteran 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 the Veteran's service-connected low back strain does not warrant an evaluation in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Extraschedular consideration The Board has also considered whether the Veteran is entitled to consideration of an extraschedular rating. 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 strain. In addition, 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). 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, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for low back strain is denied. REMAND The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, a letter dated in February 2013 from the RO indicates the Veteran's representative has filed a formal claim for entitlement to a TDIU. Therefore, the issue of entitlement to a TDIU has been reasonably raised by the evidence of record and should be adjudicated as part of the claim on appeal. Id.; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). As the issue of entitlement to a TDIU has not been properly developed for appellate review, the issue is remanded for appropriate action. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the Veteran VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO. 2. The RO should complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history. 3. When the development requested has been completed, adjudicate the claim for entitlement to a TDIU. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs