Citation Nr: 1323965 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-19 012A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a rating in excess of 60 percent for spondylolisthesis status post L4-L5 diskectomy with chronic low back pain (claimed as muscle spasms chronic low back pain, ruptured disc, and degenerative joint disease). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant had active service from September 1976 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. FINDING OF FACT The service-connected low back disability has not been manifested by unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 60 percent for the Veteran's service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (Code) 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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 agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, the severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that may be considered or notify him of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores, 580 F.3d 1270 (Fed. Cir. 2009). Here, a letter dated in April 2007 apprised the Veteran of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. In addition, the letter informed the Veteran that an increase in his low back disability may be shown by doctor statements, physical and clinical evaluation results, X-rays, and statements from individuals who are able to describe from their knowledge and personal observations the manner in which the disability has worsened. This letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. Specifically, the RO obtained the Veteran's post-service treatment records. His Virtual VA (VA's electronic data storage system) has been reviewed. VA provided the Veteran the opportunity to give testimony before the Board, but the Veteran did not avail himself of this opportunity. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c)(2). Additionally, pertinent VA examinations with respect to the issue on appeal were obtained in April 2007 and November 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations are adequate for adjudication purposes, as they describe in full the current manifestations of the Veteran's service-connected low back disability and contemplate his pertinent medical history. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. See 38 C.F.R. § 3.159(c)(4). There is simply no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case. Thus, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria, Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file; and in Virtual VA. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increased disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Different percentage ratings for different periods of time can be applied based on the medical evidence of record. Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Historically, the RO granted service connection for spondylolisthesis status post L4-L5 discectomy with chronic low back pain and right radicular symptoms claimed as muscle spasms chronic low back pain, ruptured disc, degenerative joint disease chronic low back pain in January 2005 and assigned a 10 percent rating effective September 10, 2001, and a 60 percent rating from June 28, 2002. In March 2007, the Veteran filed a claim for an increase rating for his service-connected back disability. In the July 2007 rating decision (currently on appeal), the RO confirmed and continued the 60 percent rating. The Veteran's 60 percent rating was assigned from June 28, 2002 under Code 5293 (as in effect prior to September 23, 2002). Under Code 5293 (intervertebral disc syndrome) (prior to September 23, 2002), 60 percent is the maximum rating under that code and is warranted for pronounced disease, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, Code 5293 (2001). Under the revised criteria, effective September 23, 2002, intervertebral disc syndrome is rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Code 5293 (September 23, 2002). A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Under the revised criteria, effective September 26, 2003, lumbosacral strain (designated at Code 5237) and degenerative arthritis of the spine (designated at Code 5242 (see also Code 5003)) are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Code 5293 for rating intervertebral disc syndrome was changed to Code 5243, which provides that ratings are now based on either the General Rating Formula for Diseases and Injuries of the Spine, or on the basis of incapacitating episodes (the criteria which remain unchanged from September 23, 2002), whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS). Pertinent to the lumbosacral spine, the General Rating Formula for Diseases and Injuries of the Spine provides for the next higher rating in excess of 60 percent if there is unfavorable ankylosis of the entire spine (rated 100 percent disabling). 38 C.F.R. § 4.71a. Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note: (2) 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 cervical 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. (See also Plate V.) 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 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 spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. See 38 C.F.R. § 4.71a, Codes 5235-5243 (2012) (effective September 26, 2003). As noted above, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent (maximum) rating. Note (1): For purposes of evaluations under Code 5243 an incapacitating episode is 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Code 5243. 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 examinations 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 enervation, 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. §§ 4.10, 4.40, 4.45. The provisions of 38 C.F.R. §§ 4.45 and 4.59 contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca, 8 Vet. App. at 206. However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson, 9 Vet. App. 7. Further, the Board recognizes that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Finally, the Court has held that "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. To find otherwise would permit absurd results - compensation twice for the same condition ..."). See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Generally, "pyramiding," the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. The Veteran essentially contends that his service-connected low back disability has worsened in severity. On December 2005 examination by his private physician, Dr. Kirven (orthopedic surgeon), the Veteran reported that he was post lumbar diskectomy. He complained of a dull ache; and most of the pain was with walking. He denied any bowel/bladder dysfunction or motor weakness. He reported that his job had changed and he was "flying quite a bit" and had significant pain after his flights. On motor testing his lower extremities were 5/5. Lower extremity sensation was intact from L1-5 and S1 bilaterally. He had normal lumbar lordosis. Forward bending of the lower lumbar spine was to 50 degrees, extension was neutral, and side bending was to 20 degrees. The impression was muscular back pain and degenerative disc disease. On examination in October 2006 by Dr. Kirven, the Veteran complained of intermittent pain in the lower back with stiffness and numbness down the right leg. He denied bowel or bladder dysfunction or motor weakness. Lower extremity motor testing was 5/5 in all aspects. Lower extremity sensation was intact from L1-5 and S1 bilaterally. Forward bending of the lower lumbar spine was to 40 degrees, extension was 5 degrees, and side bending was to 20 degrees. He had stiffness in the lower back and some atrophy of the back musculature. The impression was lumbar instability with degenerative disk disease. A February 2007 computerized tomography (CT) scan of the lumbar spine showed findings of degenerative changes with mild reduction caliber spinal canal at L3-4; reduction caliber spinal canal due to degenerative changes and disk bulge/borderline stenosis L4-5; foraminal narrowing L4-5, right greater than left; degenerative changes L5-S1, normal vertebral body height, and subtle grade I retrolisthesis L4-5. In March 2007 the Veteran saw Dr. Kirven for a follow-up visit for chronic lower back pain. He reported that he had back pain with walking, standing and bending. He denied bowel or bladder dysfunction or motor weakness. He complained of a constant dull ache. He had difficulty getting out of bed in the early morning hours, and his pain radiated into the right leg. Lower extremity motor tests were 5/5 in all aspects. Lower extremity sensation was intact from L1-5 and S1 bilaterally. Forward bending of the lower lumbar spine was to 50 degrees, extension was neutral, and side bending was to 20 degrees. On April 2007 VA spine examination, the Veteran reported that he had an L4-5 diskectomy in February 2003. He stated that he applied for an increase in his service-connected low back disability because of increased problems (in the past year) and because he and his surgeon discussed the possibility of a fusion. He stated that he works as an auditor for a federal agency and can no longer conduct site visits because travelling aggravates his back problems. He has had flare-ups of his back pain which required him to miss work (about two days in the last four months, and four days in 2006). He complained of morning back stiffness. He stated that he has had more severe back pain for which he takes medication two days per month. He reported radiating pain in the posterior part of his right leg about two times a month for several hours. It was noted that he did not have any incapacitating episodes. He did not require a cane. He stated that he gave up running because it aggravated his back pain, but now walks about 2 miles 2 to 3 times a week at the direction of his doctor. The examiner noted that the Veteran had no lumbar paravertebral muscle spasm at the beginning or end of the examination. Straight leg raising was negative on the left; and positive on the right at 40 degrees. He could laterally rotate 35 degrees to the right and left without event. He could laterally flex 35 degrees to the right and left on three repeated trials without event. He could extend to 25 degrees on three repeated trials without event. He could only forward flex on three repeated trials and he developed low back pain at that point. There was no root-like sensory loss. The deep tendon reflexes were 2+ and symmetrical in the arms and legs. There were no Babinski's, or weakness in the thighs or legs or feet. The impression was status post L4-5 diskectomy and spondylolisthesis with limitation in motion of the back. On July 2007 examination by Dr. Kirven, the Veteran reported that he continued to have pain in the lower back with walking, standing and bending, in addition to leg pain with numbness and tingling. He had difficulty getting out of bed in the early morning hours. Lower extremity motor testing was 5/5 in all aspects. Lower extremity sensation was intact from L1-5 and S1 bilaterally. Forward bending of the lower lumbar spine was to 40 degrees, extension was neutral, and side bending was to 20 degrees. There was incisional swelling. CT scan showed articular facet degeneration, thickening of the ligamentum flavum; in addition at the L5-S1 there was a neuroforaminal narrowing as well as facet joint hypertrophy. There was a spondylolisthesis at the 4-5 level. The impression was that the Veteran was in need of a posterior lumbar fusion with instrumentation. Dr. Kirven noted that the Veteran had an 80 percent impairment rating related to a restriction of motion in lumbar spine, absence all lower reflexes, in addition to severe degenerative changes as noted on the February 2007 CT scan. On January 2009 CT scan of the lumbosacral spine, the impression was degenerative changes of the lumbosacral spine, disc height loss and bulge at L4-5 and degenerative changes at L4-5 with diffuse bulge, with bilateral foraminal narrowing, right greater than left. August 2011 CT scan of the lumbar spine showed a mild degree of retrolisthesis of L4 on L5 with the degenerative disc disease, bony degenerative changes, mild to moderate central canal stenosis at L4-5 with the diffuse disc bulge and the facet hypertrophy causing bilateral neural foraminal stenosis; and mild degenerative disc disease of L5-S1. On November 2011 VA examination, the Veteran reported that he was still under the care of Dr. Kirven for chronic lower back pain and bilateral leg numbness and tingling. He stated that he struggles many mornings to get out of bed because of stiffness. In the past several months he cut back on walking from 3 to 4 miles daily, to 1 mile three times a week. He reported that he had a hard time sleeping at night because of lower back pain. He cannot stand for too long; he has trouble tying his shoe laces because of problems bending, and he has difficulty getting dressed (putting on socks). On range of motion testing, he had forward flexion to 45 degrees with painful motion beginning at 35 degrees; extension was to 20 degrees with painful motion beginning at 20 degrees; bilateral lateral flexion was to 20 degrees with painful motion beginning at 20 degrees; right lateral rotation was to 20 degrees, and left lateral rotation was to 20 degrees with painful motion beginning at 20 degrees. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. There was functional loss and or functional impairment of the thoracolumbar spine. He had less movement than normal and pain on movement. There was tenderness in the right L4-5 and L5-S1 areas. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5. There was no muscle atrophy. Sensory examination of the left lower extremities was normal, and the right lower leg and foot were decreased. Straight leg raising was positive on the right and negative on the left. He had mild to moderate radiculopathy and moderate numbness of the right lower extremity. There was involvement of L4-5, S1-3 nerve roots (sciatic nerve) on the right. He did not have other neurologic abnormalities or findings related to his low back disability. Intervertebral disc syndrome of the thoracolumbar spine was not shown. He stated he had a back brace, but did not wear it to the appointment. He did not have any painful and/or unstable scars, or scars greater than six inches. The diagnosis was lumbosacral spondyloarthropathy, L4-5, L5-S1, and mild to moderate central canal stenosis L4-5. Regarding functional impairment, the Veteran worked as an auditor, (a job requiring a lot of traveling). He had problems with prolonged sitting on airplanes, therefore back pain impacted his ability to travel frequently as the job required. In light of the foregoing, the Board notes that while the Veteran was initially rated under the old criteria (Code 5293, intervertebral disc syndrome (prior to September 23, 2002)), an increased rating for his low back disability must now be determined by the new criteria (Code 5237, lumbosacral strain). The next higher rating (in excess of 60 percent) under Code 5237 is 100 percent and requires manifestation of unfavorable ankylosis of the entire spine. The medical evidence of record does not show that the Veteran has now or has ever had unfavorable ankylosis of the entire spine to warrant the next higher rating of 100 percent under Code 5237. Therefore, his claim for an increased rating must be denied. The Board has considered whether a higher rating is warranted under Code 5243 (intervertebral disc syndrome) and find that the maximum rating under that diagnostic code is 60 percent and therefore would not afford the Veteran a higher rating. Further, the Board has considered whether separate ratings are available due to neurological manifestations as shown in the evidence. Here, neurological findings were specifically provided for under the old Code 5293. That Code contemplates persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. Therefore assigning separate disability ratings for objective neurological abnormalities manifested in the lower extremities represents pyramiding, as such would consider the same symptomatology already provided for under the 60 percent rating under former Code 5293. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); 38 C.F.R. § 4.14. Even if separate ratings were assigned under the new rating criteria in this instance, an analysis of such a scenario reveals that a combined rating would still not avail the Veteran a rating in excess of 60 percent. For example, although it is theoretically possible to obtain an evaluation in excess of 60 percent by rating the orthopedic symptoms (limitation of motion of the lumbar spine) and neurological symptoms (in the lower extremities) separately, the evidence shows that the severity of the Veteran's limitation of motion and separately ratable neurological symptoms does not support a higher level of compensation. The maximum evaluation for limitation of motion of the spine (under the former and the amended criteria) is 40 percent. Any higher evaluation contemplates ankylosis, and, as stated above, the Veteran does not have ankylosis of the thoracolumbar spine. In considering combining the maximum evaluation for limitation of motion of 40 percent with a separate rating for neurological symptoms under Diagnostic Code 8520, the Board notes that the November 2011 VA examination showed mild to moderate neurologic symptomatology only in the right leg. Moderate neurological symptoms in one lower extremity warrant only a 20 percent rating under Code 8520. This would establish a combined evaluation for the lumbar degenerative disc disease which is less than the current 60 percent rating. 38 C.F.R. § 4.25. The other medical evidence fails to demonstrate more severe neurological symptomatology. The records from Dr. Kirven generally show normal neurological findings other than the July 2007 examination which showed an absence of lower reflexes which was not found on other examinations. The Board finds that this finding is not reflective of the Veteran's true condition as it is inconsistent with the other evidence of record. The VA examination in April 2007 showed essentially normal neurological findings, with it specifically being noted that the deep tendon reflexes were 2+ and symmetrical. An examination report from Dr. Kirven in June 2009 also showed ankle and knee jerks were 2+ with a decreased sensation in the L5 dermatome noted only on the left. Moreover, even if there were findings of moderate neurological impairment in both lower extremities warranting two separate 20 percent ratings under 8520, these would still only combined with a 40 percent rating for limitation of motion of the spine to give a combined rating of 60 percent. For these reasons, the Board finds that a higher rating may not be assigned by combining the maximum evaluation for limitation of motion of 40 percent with a separate rating(s) for neurological symptoms under Diagnostic Code 8520. The Board has not overlooked the Veteran's statements regarding the increase in severity of his service-connected low back disability. The Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing and witnessing pain and numbness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence was provided by the Veteran during the course of his VA examinations and in statements submitted during the course of the appeal. He is competent to report his current symptomatology as it pertains to his low back disability and the Board finds that his statements are credible. With respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). The Board has considered the Veteran's reports with respect to experiencing symptoms in evaluating his disability rating in this decision. In this case, the Board notes that the Veteran has not provided statements regarding unfavorable ankylosis of the entire thoracolumbar spine. A disability rating in excess of 60 percent for a low back disability is not warranted as there is no evidence of record which indicates the presence of unfavorable ankylosis of the entire thoracolumbar spine, for which a 100 percent rating is provided for under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Accordingly, the Board determines that the Veteran's service-connected low back disability has been no more than 60 percent disabling since date of his claim for increase in March 2007. As such, his rating may not be staged because it represents his greatest level of impairment attributable to this condition since that date. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether referral for extraschedular consideration is indicated for the Veteran's low back disability. There is no objective evidence, or even allegation, suggesting that the schedular criteria are inadequate to rate such disability or that the disability picture presented is exceptional. The symptoms and associated restrictions of function shown are fully encompassed by the schedular criteria. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the record shows the Veteran is employed as an auditor, the matter of a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a rating in excess of 60 percent for spondylolisthesis status post L4-L5 diskectomy with chronic low back pain (claimed as muscle spasms chronic low back pain, ruptured disc, and degenerative joint disease) is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs