Citation Nr: 1322731 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-50 190 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for lumbar strain, prior to August 4, 2009. 2. Entitlement to a rating in excess of 10 percent for lumbar strain, from August 4, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 2002 to May 2008. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2009 rating decision in which the RO awarded service connection and assigned an initial 20 percent rating for lumbar strain, effective May 17, 2008. In May 2009, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in September 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. In July 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of that hearing has been associated with the claims file. In September 2009, the RO, inter alia, assigned a 10 percent rating for the Veteran's lumbar strain, effective August 4, 2009. As the Veteran disagreed with the initial rating assigned following the award of service connection, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claim for increased ratings for already service-connected disability). As the subsequent, staged rating assigned, the appeal also encompasses the matter of a higher rating for the lumbar spine disability from August 4, 2009, as reflected on the title page. Id; AB v. Brown, 6 Vet. App, 35, 38 (1993). As a final preliminary matter, the Board notes that, in August 2010, the RO generated a VA Form 8, Certification of Appeal, with regard to the issues of entitlement to an increased rating for posttraumatic stress disorder, synovitis of the left knee, a right knee strain and lumbar strain. Also, in June 2010 and in June 2013, the Veteran's representative submitted informal hearing presentations as to these issues. However, a review of both the paper claims file and the electronic Virtual VA claims file reveals that the Veteran has not perfected an appeal with a timely-filed substantive appeal as to the issues of higher ratings for posttraumatic stress disorder, synovitis of the left knee and a right knee strain. As such, these matters are not properly before the Board, and the current appeal is limited to the matter set forth on the title page. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the claim on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. For the period prior to August 4, 2009, the Veteran's lumbar strain has resulted in reduced range of motion that included forward thoracolumbar flexion to no less than 55 degrees and a combined range of motion of the thoracolumbar spine of no less than 185 degrees, but has not been productive of ankylosis of the spine, or any separately ratable neurological manifestation(s), or been shown to involve intervertebral disc syndrome with any period(s) of incapacitation. 3. Since August 4, 2009, the Veteran's lumbar strain has resulted in reduced range of motion that included forward thoracolumbar flexion to no less than 90 degrees and a combined range of motion of the thoracolumbar spine of no less than 260 degrees, but has not been productive of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour, ankylosis of the spine or any separately ratable neurological manifestation(s), or been shown to involve intervertebral disc syndrome with any period(s) of incapacitation. 4. The applicable schedular criteria have been adequate the disability under consideration at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for lumbar strain, prior to August 4, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2012). 2. The criteria for a rating in excess of 10 percent for lumbar strain beginning on August 4, 2009 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A July 2008 pre-rating letter provided pertinent notice to the Veteran in connection with what was then a claim for service connection for a back condition. That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. Furthermore, although no additional notice for the downstream issues was required under 38 U.S.C.A. § 5103A (see VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)), in this case, after the award of service connection and the Veteran's disagreement with the initial rating assigned, the September 2009 SOC set forth the criteria for higher ratings for a lumbar spine disability, to include the criteria for the General Formula for Diseases and Injuries of the Spine (the timing and form of which suffices, in part, for Dingess/Hartman). The Veteran was afforded appropriate opportunity to respond to the additional information provided before the claims file was returned to the Board. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records and the reports of VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and his representative on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim for higher rating, prior to appellate consideration, is required. The Board points out that that the Veteran was provided the opportunity to orally set forth his contentions during his hearing before a Decision Review Officer. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2009 hearing, the DRO enumerated the issues which were then on appeal, to include a claim for a higher initial rating for lumbar strain. The Veteran provided testimony regarding the symptoms associated with his lumbar strain, to include an incident in which his back "seized up" and interfered with his leisure activities. Although the DRO did not explicitly suggest the submission of specific evidence to support the claim, the hearing transcript reflects appropriate exchanges between the Veteran, his representative, and DRO pertaining to the Veteran's current treatment and the bases for denial of the claim. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that 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. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the award of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. As the RO has already awarded staged ratings for the lumbar spine disability under consideration, the Board will consider the propriety of the rating at each stage, as well as whether any further staged rating is required. Although the ratings for the Veteran's lumbar spine disability have been assigned under Diagnostic Code 5237 (for lumbosacral strain), the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors is evaluated. Under the General Rating Formula, a 10 percent is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or muscle spasms, 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, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms or guarding were 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 forward flexion of the thoracolumbar spine to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. The noted criteria apply with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion 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. Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, 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; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The relevant evidence in the record includes the Veteran's VA records, as well as reports of VA examinations conducted in November 2008 and August 2009. For the period prior to August 4, 2009, the record establishes that the Veteran's thoracolumbar flexion was limited to 55 degrees and that the combined thoracolumbar range of motion was limited to 185 degrees, both at worst, without ankylosis. For the period beginning on August 4, 2009, the record establishes that the Veteran's thoracolumbar flexion was limited to 90 degrees and that the combined thoracolumbar range of motion was limited to 260 degrees, both at worst, without objective evidence of muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour on examination. Collectively, these symptoms have resulted in no more impairment than that contemplated in the assigned 20 percent rating prior to August 4, 2009, and the assigned 10 percent rating from that date. A July 2008 VA treatment note reflects the Veteran's reports of chronic lumbar pain that was described as dull and achy. Radiation of pain, weakness in the lower extremities, bowel problems or bladder problems were denied by the Veteran. Physical examination revealed full range of motion, with complaints of pain on flexion, and specific range of motion was not reported. Straight leg raising was negative bilaterally. A report of a November 2008 VA examination reflects the Veteran's complaints of progressively worsening back pain as well as stiffness and limited motion. Flare-ups occurred with twisting, bending or pushing and were alleviated by rest, massage and the use of medication. Such flare-ups were reported to occur weekly and last from one to two days. Incapacitating episodes, extremity symptoms or a history of urinary incontinence or fecal incontinence were denied. Physical examination revealed tenderness to the lower lumbar spine on palpation. Flexion was from zero degrees to 55 degrees with pain at "end of flexion," extension was from zero degrees to 15 degrees with pain at zero degrees, left lateral flexion was from zero degrees to 30 degrees, right lateral flexion was from zero degrees to 25 degrees and bilateral rotation was from zero degrees to 30 degrees. There was no additional limitation of motion on repetitive motion testing. Straight leg test was negative. A contemporaneous X-ray revealed an "otherwise normal lumbar spine with a segmentation error." A May 2009 VA treatment note indicates that the Veteran's lumbar spine was tender to palpation, though the pain was noted to not be exquisite. There was no decrease in range of motion found but specific range of motion measurements were not detailed. Right lower extremity lift was to 45 degrees without "real" pain and mild pain was elicited on bent right lower extremity; the findings related to the left leg were noted to be similar. A report of an August 4, 2009 VA examination reflects the Veteran's complaints of constant, daily lumbar pain and spasms that radiated into both legs. Flare-ups occurred every one to two months and lasted three to seven days. Incapacitating episodes totaling two or three days during the last 12 month period were reported. Fatigue, decreased motion, stiffness, weakness, urinary incontinence, fecal incontinence, numbness or paresthesias were denied. Physical examination in August 2009 revealed tenderness in the thoracic sacrospinalis without spasms, atrophy, guarding, pain with motion or weakness. Muscle spasms, localized tenderness or guarding were not found to be severe enough to be responsible for abnormal gait or abnormal spinal contour. Gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis or thoracolumbar spine ankylosis were not found. Flexion was from zero degrees to 90 degrees with pain beginning at 65 degrees, extension was from zero degrees to 20 degrees with pain beginning at 15 degrees, bilateral lateral flexion was from zero degrees to 30 degrees with pain beginning at 20 degrees and bilateral lateral rotation was from zero degrees to 45 degrees without pain. There was no additional limitation of motion on repetitive motion testing. On detailed sensory examination, vibration, pain, light touch and position sense were found to be normal in the lower extremities. Knee jerk was found to be absent while ankle jerk was found to be 2+ bilaterally. An accompanying lumbar spine X-ray was normal. For the period prior to August 4, 2009, thoracolumbar range of motion testing conducted has demonstrated some loss of thoracolumbar motion but has not reflected forward flexion that is limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine, as required for the next higher rating under the General Rating Formula for the period. As noted above, range of motion testing conducted in the November 2008 VA examination revealed thoracolumbar flexion of 55 degrees. As indicated, VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the General Rating Formula for the spine. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during the Veteran's October 2008 VA examination, pain was noted to occur at the end of flexion and extension. Nonetheless, given the extent of thoracolumbar flexion demonstrated by the Veteran at his VA examination, the overall level of disability demonstrated is not commensurate to a loss of flexion to 30 degrees or less. Moreover, while the Veteran reported that pain, fatigue, weakness, or lack of endurance was after repetitive motion at his VA examination, the October 2008 VA examiner noted that the Veteran did not demonstrate any further loss of motion or function due to those symptoms. For the period beginning on August 4, 2009, thoracolumbar range of motion testing conducted has revealed some loss of thoracolumbar motion but has not reflected forward flexion that is limited to 60 degrees or combined range of motion of the thoracolumbar spine that was not greater than 120 degrees, as required for the next higher rating under the General Rating Formula. As noted above, range of motion testing conducted on August 4, 2009 revealed thoracolumbar flexion of 90 degrees while combined thoracolumbar motion was measured to be 260 degrees. In addition, a higher rating based upon muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour is not warranted. In this regard, the August 2009 VA examiner found the Veteran's gait to be normal and that there was no abnormal spinal curvatures such as kyphosis, scoliosis or reverse lordosis. For this period, the Board has also considered functional loss due to pain and other factors, to include with repeated use or during flare-ups, in conjunction with criteria under the General Spine Rating Formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during his August 2009 VA examination, while pain was noted on repetitive motion testing no further limitation of motion was found. Nonetheless, given the extent of thoracolumbar flexion demonstrated by the Veteran at his VA examination, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 30 degrees even after taking the reported pain into consideration. Accordingly, even after taking the factors identified in DeLuca into consideration, the Board finds that no any disability rating in excess of 20 percent prior to August 4, 2009 or in excess and 10 percent from that date cannot be granted, under the General Rating Formula, on the basis of restricted thoracolumbar motion. Moreover, the post-service radiological lumbar spine studies, treatment notes and VA examination reports simply do not reflect objective findings of ankylosis in the spine, or any suggestion that the Veteran effectively experiences ankylosis of the spine. The Board also has considered whether combining ratings for orthopedic and neurological manifestations of lumbar spine disability would result in a higher rating, pursuant to Note (1) of the General Rating Formula. However, there is no evidence of any separately ratable neurological manifestation(s). The Veteran has consistently denied bladder or bowel impairments and none were found on examination. Although the Veteran reported that his lumbar pain radiated into both lower extremities during his August 2009 examination, there was no objective evidence of radiculopathy has been demonstrated on examination as sensory examination was found to be normal. In addition, the Veteran denied such symptoms in November 2008. As such, Note 1 provides no basis for any higher rating at any point pertinent to this appeal. The Board further finds that a higher rating is not assignable under any other potentially applicable rating criteria. For rating lumbar spine disabilities, 38 C.F.R. § 4.71a also includes a Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). Here, although lumbar problems clearly have been noted in the post-service clinical evidence, the Veteran's disability has not been shown to involve IVDS. Moreover, even if the criteria under this rating schedule provision is considered to evaluate the Veteran's lumbar strain, by analogy, there is no competent, persuasive evidence that the Veteran has experienced any incapacitating episodes. In this regard, the treatment records and VA examination reports clearly reflect some physical limitations, but do not indicate that bed rest was medically prescribed at any time pertinent to this appeal. Although the August 2009 VA examiner suggested that the Veteran had incapacitating episodes lasting two or three days in the past 12 months, the clinical evidence of record does not establish that the Veteran had been medically prescribed bed rest. Similarly, the Veteran denied incapacitating episodes during his November 2008 VA examination. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The above-noted determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the September 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that, although a claim for a total disability rating based on individual unemployability (TDIU) may be raised in the record as a component of a claim for higher rating (see e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009)), here, there is no evidence or argument indicating that the Veteran's lumbar strain has rendered him unemployable at any pertinent point. He has reported working prior to March 2009, and in August 2009, the Veteran reported that he had been laid off in March 2009. As such, a claim for a TDIU due to lumbar strain has not reasonably been raised, and need not be addressed. For all the foregoing reasons, the Board finds that, there is no basis for any further staged rating for the Veteran's lumbar strain, pursuant to Fenderson, and that a higher rating at each stage must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the disability on appeal, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 20 percent for lumbar strain, prior to August 4, 2009, is denied. A rating in excess of 10 percent for lumbar strain, from August 4, 2009, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs