Citation Nr: 1324292 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-02 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a higher initial evaluation (rating) in excess of 10 percent for degenerative joint disease of the thoracolumbar spine. 2. Entitlement to a higher initial evaluation (rating) in excess of 10 percent for right radial synovial osteochondromatosis and tenosynovitis of the right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1979 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that granted service connection for degenerative joint disease of the thoracolumanbr spine and right radial synovial osteochondromatosis and tenosynovitis of the right wrist, and assigned zero percent initial ratings from January 1, 2008. By way of subsequent procedural history, the Veteran expressed disagreement with the initial ratings for this decision in July 2008. Subsequently during the initial rating appeal, a November 2009 rating decision assigned initial 10 percent ratings to the thoracolumbar spine disability and the right wrist disability for the entire initial rating period from January 1, 2008. Inasmuch as a higher rating than 10 percent is available during the period of the appeal, and a veteran is presumed to seek the maximum available benefit for a disability, the appeal for a higher initial disability rating remains viable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the July 2008 rating decision denied several issues including a denial of service connection for sleep apnea. The Veteran was notified of this decision and filed a timely notice of disagreement for the issue of service connection for sleep apnea in July 2009. A statement of the case was issued in January 2010. The Veteran did not file a timely substantive appeal; therefore, the issue of service connection for sleep apnea was not appealed, so was not certified for appeal, and is not before the Board for appellate consideration. See 38 C.F.R. § 20.200 (2012). The Veteran requested a hearing before the Board in January 2010; however, in January 2012, the Veteran informed VA that he no longer wished to have a hearing. Accordingly, the Board finds that the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the entire rating period of the appeal from January 1, 2008, the service-connected degenerative joint disease of the thoracolumbar spine has been manifested by pain, with limitation of forward flexion of the thoracolumbar spine to greater than 60 degrees, a combined range of motion of the thoracolumbar spine of greater than 120 degrees, and without muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour, and no incapacitating episodes due to the disc disease. 2. For the entire appeal period, there is no objective evidence of a separate and distinct neurological disability due to the thoracolumbar spine degenerative joint disease. 3. The Veteran's right upper extremity is his major or dominant upper extremity. 4. For the entire appeal period, the service-connected right radial synovial osteochondromatosis and tenosynovitis of the right wrist has been principally manifested by pain, without objective evidence of arthritis, and did not limit dorsiflexion to less than 15 degrees or limit palmar flexion in line with the forearm, and has not produced ankylosis. CONCLUSIONS OF LAW 1. For the entire rating appeal period, the criteria for the assignment of an initial disability evaluation in excess of 10 percent for the service-connected degenerative joint disease of the thoracolumbar spine have not been met or more nearly approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5235-5243 (2012). 2. For the entire rating appeal period, the criteria for the assignment of an initial disability evaluation in excess of 10 percent for the service-connected right radial synovial osteochondromatosis and tenosynovitis of the right wrist have not been met or more nearly approximated. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Codes 5024-5215, 5214 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a letter dated in February 2008. The VCAA letter informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. The letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the February 2008 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. The Veteran's appeal for a higher initial rating for the thoracolumbar spine and right wrist disabilities arises from his disagreement with the initial evaluation following the grant of service connection. VCAA notice regarding the service connection claim was furnished to the Veteran in February 2008. Courts have held that, once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained and are associated with the claims folder. In February 2008, VA contacted the Veteran and asked him to identify any additional treatment records for the claimed disabilities. The Veteran did not identify treatment. VA provided examinations in June 2008 and July 2011 to obtain medical evidence as to the current severity of the thoracolumbar spine and right wrist disabilities. The examinations are adequate because the examinations were performed by medical professionals based on review of claims file and a solicitation of history and symptomatology from the Veteran, and examinations of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiners considered the Veteran's reported medical history and lay statements concerning the claimed disorders. The VA examiner described the symptoms and manifestations due to the thoracolumbar spine and right wrist disabilities, including range of motion of the thoracolumbar spine and right wrist. The VA examiners reported whether the disabilities caused functional impairment or functional limitation including additional limitation of range of motion. The examination reports are accurate and fully descriptive. Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained for these issues. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims and VA met its duty to assist the Veteran. Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The U.S. Court of Appeals for Veterans Claims (Court) has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting a distinction between claims stemming from an original rating versus increased rating). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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 or 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. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The Court has also noted that, when rating spine disabilities, the Board must discuss any additional limitation of motion that a veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); VAOPGCPREC 9-98. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). The Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under Diagnostic Code 5003, a maximum rating of 10 percent is provided for degenerative arthritis of a major joint or group of minor joints that is established by x-ray findings with pain and noncompensable limitation of motion; therefore, in this case, as the Veteran's lumbar spine disability (arthritis) is already rated 10 percent disabling, a higher rating is not possible under Diagnostic Code 5003. Higher ratings are only possible under specific codes that rate on limitation of motion. Diagnostic Code 5003 directs that higher ratings based on limitation of motion are possible under specific diagnostic codes that rate limitation of motion of the joint involved, and that any ratings assigned under these diagnostic codes on the basis of limitation of motion cannot be combined with the 10 percent rating for arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Rating Criteria for a Spine Disability Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine are rated under the following General Rating Formula for Diseases and Injuries of the Spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the 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 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. 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. 38 C.F.R. § 4.71a Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease 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 Diagnostic Code 5243, a 10 percent rating is warranted for when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Rating Criteria for a Wrist Disability Diagnostic Codes 5024, tenosynovitis, provides that this disability is rated on limitation of motion of affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a. Full wrist dorsiflexion or extension is zero degrees to 70 degrees. Full wrist palmar flexion is zero degrees to 80 degrees. Full wrist ulnar deviation is zero degrees to 45 degrees. Full wrist radial deviation is zero degrees to 20 degrees. 38 C.F.R. § 4.71 Plate I (2012). Diagnostic Code 5215, limitation of motion of the wrist, provides a 10 percent rating for limitation of motion of the wrist (major or minor) if dorsiflexion is less than 15 degrees or if palmar flexion is limited in line with the forearm. A 10 percent rating is the highest disability rating available under Diagnostic Code 5215. 38 C.F.R. § 4.71a. Diagnostic Code 5214 provides that ankylosis of the (major) wrist in a favorable position in 20 degrees to 30 degrees in dorsiflexion warrants a 30 percent disability rating. A 40 percent rating is provided for ankylosis in any other position except favorable. A 50 percent rating is provided for unfavorable ankylosis of the major wrist. 38 C.F.R. § 4.71a. Lumbar Spine Rating Analysis The Veteran contends that he is entitled to a higher initial rating than 10 percent for his lumbar spine disability. At the July 2011 VA examination, the Veteran reported that physical activity exacerbated his back pain and he had difficulty sitting for a prolonged period of time, and this interfered with his work on computers. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for the service-connected thoracolumbar spine disability for the entire appeal period. The evidence shows that, for the entire rating period of the appeal from January 1, 2008, the service-connected thoracolumbar spine disability has been manifested by back pain which increases with physical activity and causes difficulty with prolonged sitting or walking and this symptomatology is contemplated in the 10 percent disability rating under either Diagnostic Code 5003 or the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a. Review of the evidence of record for the time period in question shows that upon VA examination in June 2008 the Veteran reported having pain in his low back, with increased pain if he drove for longer than one hour. Upon VA examination in July 2011, the Veteran reported that the low back pain limited his walking in that he could only walk one mile. He reported having stiffness, spasm, decreased motion, and weakness. The Veteran indicated that he had pain in the low back two times a day and the pain lasted one hour. He reported having pain that was exacerbated with physical activity and relieved by Motrin. The Veteran reported that the low back pain affected his work because he had difficulty sitting for a prolonged period of time. Review of the evidence of record shows that upon VA examinations in June 2008 and July 2011 there were normal ranges of motion of the thoracolumbar spine with forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and right and left lateral rotation was to 30 degrees. The range of motion findings for the thoracolumbar spine combined to 240 degrees. Gait and posture were normal. X-ray examination showed moderate degenerative changes in the lumbar spine. See the VA examination reports dated in June 2008 and July 2011. Upon VA examination in June 2008, there were no findings of edema, tenderness, guarding, redness, heat, instability, weakness, abnormal movement, spasm, pain on motion, or pain on motion against resistance. The Veteran reported that the lumbar spine disability did not affect his daily activities. He reported that the effect on work was that he had to get up and walk around frequently. Upon VA examination in July 2011, there were no findings of radiating pain with movement, no muscle spasm, tenderness guarding of movement, weakness, or atrophy. There was no ankylosis. As noted, the Veteran reported having pain with motion and increased pain with physical activity; however, the VA examination reports indicate that there was no evidence of additional limitation of motion with repetition and there is no evidence of any additional limitation of motion due to pain, weakness, lack of endurance, or incoordination. The Board has fully considered and weighed the Veteran's reports of back pain with prolonged motion or activity, and applied the rating principles at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, but finds that, even fully considering such factors, the pain does not limit motion to a compensable degree to warrant a higher rating under Diagnostic Code 5260 or 5261. The weight of the competent and credible evidence establishes that any additional limitations of motion of the thoracolumbar spine due to pain have been productive of no more than a noncompensable degree. Such noncompensable limitation of motion due to pain and other limiting factors has already been considered and provided the basis for the 10 percent (maximum) rating under Diagnostic Code 5003. For this reason, there is no basis for the assignment of higher rating than 10 percent on the basis of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca at 206-07. At the various examinations, the Veteran denied having any incapacitating episodes due to the lumbar spine disability. The VA examination reports indicate that upon examination, gait and posture were normal. There were no abnormal spinal curvatures and no ankylosis. There was no guarding severe enough to cause abnormal gait. Physical examination revealed no spasm, guarding, weakness, or atrophy. Sensory examination of the lower extremities was normal. Muscle strength was 5/5. Muscle tone was normal. See the VA examination reports dated in June 2008 and July 2011. As such, the criteria for the assignment of a 20 percent disability rating have not been met or more nearly approximated based upon the established criteria for range of motion of the thoracolumbar spine for the initial period of the appeal. 38 C.F.R. §§ 4.3, 4.7. The 10 percent rating contemplates the Veteran's functional impairment in the thoracolumbar spine during flare-ups or due to pain with activity or prolonged standing, sitting, or walking. The evidence does not show that any of the 20 percent rating criteria are met or more nearly approximated, namely, 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; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes. As such, the criteria for the assignment of a 20 percent disability rating have not been met or more nearly approximated based upon the established criteria for range of motion of the thoracolumbar spine for the initial period of the appeal. 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 10 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243. The preponderance of the evidence establishes that the service-connected lumbar spine disability is not manifested by intervertebral disc syndrome productive of incapacitating episodes having a total duration of at least two weeks during the past 12 months. The VA examination reports show that the Veteran has denied incapacitation due to the lumbar spine disability. The evidence does not indicate that any physician prescribed bed rest or incapacitation. Physician-prescribed bed rest is the requirement for an incapacitating episode. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The evidence does not demonstrate totally incapacitating days. For these reasons, the Board also finds that a disability evaluation in excess of 10 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a. For the entire appeal period, even with considerations of additional limitations due to pain and orthopedic factors, the Veteran did not experience limitation of forward flexion of the thoracolumbar spine to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour, or incapacitating episodes due to the disc disease. 38 C.F.R. §§ 4.3, 4.7. The Rating Schedule provides that any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. In this case, the evidence establishes no separate neurological disability that is due to the service-connected lumbar spine disability. The evidence of record shows that the Veteran denied having radiating pain to the lower extremities, numbness, or paresthesias. A separate neurological disability has not been diagnosed. VA neurological examination in July 2011 revealed no sensory deficits from L1 to L5 or S1. There was no lumbosacral motor weakness. Ankle and knee reflexes were normal. The lower extremities showed no pathological reflexes. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent root involvement. There were no non-organic physical signs. For these reasons, the Board finds that the evidence does not establish that the service-connected thoracolumbar spine disability is productive of a separate and distinct neurological disability, and a separate rating under the pertinent neurological rating criteria is not warranted. In summary, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the service-connected thoracolumbar spine disability for the entire appeal period, and the appeal for a rating in excess of 10 percent for the thoracolumbar spine disability must be denied. 38 C.F.R. §§ 4.3, 4.7. Right Wrist Rating Analysis The RO assigned a 10 percent initial disability rating to the disability of right radial synovial osteochondromatosis and tenosynovitis of the right wrist under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5024 (tenosynovitis). Diagnostic Code 5024 in turn provides that tenosynovitis is rated on limitation of motion of affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5215 provides for rating based on limitation of motion of the wrist. In this Veteran's case, the medical evidence establishes that the right upper extremity was the major or dominant upper extremity. See the July 2011 VA examination report. The Veteran contends that he is entitled to a higher initial disability rating than 10 percent for his right wrist disability because he was limited by pain in the right wrist when he plays sports and the right wrist pain is exacerbated by physical activity. See the VA examination reports dated in June 2008 and July 2011. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for the service-connected right wrist disability for the entire appeal period. The evidence shows that, for the entire rating period of the appeal from January 1, 2008, the service-connected right wrist disability has been manifested by some pain with use which increases with motion and with physical activity, and this symptomatology and degree of functional loss is contemplated in the 10 percent disability rating under either Diagnostic Code 5003 or rating criteria for wrist disabilities. 38 C.F.R. § 4.71a. The 10 percent rating contemplates the Veteran's functional impairment in the right wrist during flare-ups or due to pain with activity. A 10 percent rating is the highest possible rating under both Diagnostic Code 5003 (arthritis with painful, noncompensable limitation of motion) and Diagnostic Code 5215 (limitation of motion). Review of the evidence of record shows that upon VA examination in June 2008 the Veteran reported having pain in the right wrist with activity including driving, shaking hands, opening jars, opening tight door knobs, and pushups. He reported that the effect upon his daily activities was that it affected his ability to play sports. He reported that the right wrist disability did not affect his work. Upon VA examination in July 2011, the Veteran reported that the right wrist disability caused giving way, lack of endurance, tenderness, pain, dislocation, and snapping. He reported having flare-ups three times a week and the pain would last for almost a half hour. Upon VA examinations in June 2008 and July 2011 there was normal range of motion of the right wrist with dorsiflexion to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. There was no ankylosis. X-ray examination was normal. The VA examination reports indicate that upon examination, there were no findings of edema, instability, abnormal movement of the right wrist, effusion, tenderness, or weakness. The Board has considered that pain or weakness may result in additional functional limitation, and has noted the Veteran's subjective complaints of right wrist pain with activity; however, the evidence does not demonstrate that the pain and the other symptoms reported by the Veteran results in additional limitation of range of motion or limitation of function to a degree which more nearly approximates ankylosis of the wrist in a favorable position in 20 degrees to 30 degrees in dorsiflexion, as required for a higher, 20 percent disability rating under Diagnostic Code 5214; therefore, a higher rating of 20 percent under Diagnostic Code 5214 for ankylosis of the wrist is not warranted for any period of initial rating appeal. Even applying such rating factors recognizing limitation of motion due to limiting factors such as pain with use, as outlined at 38 C.F.R. §§ 4.40,4.45, 4.59, and DeLuca, such painful limitation of motion to a noncompensable degree is already contemplated in the assignment of a 10 percent disability rating under Diagnostic Code 5003. Such limitation of motion of the right wrist, including due to pain, would also be encompassed by the (maximum) 10 percent rating criteria under Diagnostic Code 5215. 38 C.F.R. § 4.71a. A rating in excess of 10 percent is not warranted for the right wrist disability under the provisions of Diagnostic Code 5214, ankylosis of the wrist. For no period of the claim has the Veteran's right wrist disability more nearly approximated ankylosis of the right wrist, as required for a higher disability rating of 20 percent under Diagnostic Code 5214, even with consideration of limitations of motion and function due to pain with use. 38 C.F.R. § 4.71a. For these reasons, the Board concludes that an initial rating in excess of 10 percent for service-connected right wrist disability is not warranted at any time during the period of the appeal. Fenderson, supra. After weighing all the lay and medical evidence, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for service-connected right wrist disability (radial synovial osteochondromatosis and tenosynovitis) for any period of claim. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture 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 for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As discussed, the Veteran's service-connected thoracolumbar spine disability has been manifested by back pain noncompensable range of motion and no separate neurological findings. The symptoms or impairments due to the lumbar spine disability are contemplated by the rating schedule; therefore, the assigned schedular rating is adequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for spine disabilities contemplate limitation of motion of the spine and 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. The schedular rating criteria, the General Rating Formula for Diseases and Injuries of the Spine and the formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, specifically provide for disability ratings based on limitation of motion (flexion and combined ranges of motion, including ankylosis), including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59; DeLuca), other objective findings such as muscle spasm, tenderness, altered gait, abnormal spinal contour, and loss of height of vertebral body. The schedular rating criteria also provide for separate ratings for objective neurological manifestations. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. The Veteran's service-connected right wrist disability has been manifested by pain with some noncompensable limitation of motion. The symptoms and impairment due to the right wrist disability are contemplated by the rating schedule, as both Diagnostic Code 5003 and Diagnostic Code 5215 contemplate 10 percent ratings for limitation of motion that is caused by pain and painful motion with use. The rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, such an ankylosis, than currently shown by the evidence. The rating criteria for wrist disabilities contemplate limitation of motion of the wrist and whether there is favorable or unfavorable ankylosis. The schedular rating criteria specifically provide for disability ratings based on limitation of motion including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21 , 4.40, 4.45, 4.59; DeLuca). The Board finds that the schedular rating criteria reasonably describe the Veteran's right wrist disability picture. Because the schedular rating criteria are adequate to rate the Veteran's service-connected thoracolumbar spine disability and the right wrist disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER A higher initial rating in excess of 10 percent for the service-connected degenerative joint disease of the thoracolumbar spine is denied. A higher initial rating in excess of 10 percent for the service-connected right radial synovial osteochondromatosis and tenosynovitis of the right wrist is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs