Citation Nr: 1324426 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-46 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for allergic rhinitis. 2. Entitlement to an initial compensable rating for lumbar spine degenerative joint disease (back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from June 2007 to September 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. Since his separation from service, the Veteran has not had an allergic rhinitis disability. 2. While the Veteran has reported that his back disability is productive of flare-ups of pain every other week of a half-day duration, the objective examination findings of record reflect full and normal movement of the thoracolumbar spine with no discomfort or difficulty, and no tenderness, deformities, weakness, fatigue, instability, or other functional limitations. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for an initial compensable rating for lumbar spine degenerative joint disease have not been met at this time. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. 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); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran filed for service connection benefits in October 2008, approximately one month after his separation from service. Service treatment records reflect that the Veteran was treated in July 2007 for minor cold symptoms and minor musculoskeletal pains, which he had been experiencing for 48 to 72 hours. He was proscribed Sudafed, lozenges, and Motrin, and returned to duty. In September 2007 he was treated for complaints of congestion, coughing, weakness, and sore throat. At the time, it was noted that he was being treated with Claritin, and on examination there was pale nasal mucosa with mild congestion. The assessment was allergic rhinitis, he was told to continue Claritin as prescribed in the emergency room, and fluticasone was also prescribed. In November 2007, the Veteran was treated for complaints of flu-like symptoms for four days, with cough, sore throat, sinus congestion, and headache. He was noted to have had otolaryngeal symptoms with nausea and vomiting for the past two days, as well as a runny nose and throat congestion at night accompanied with early morning green sputum production that rapidly cleared. He continued to take Claritin and Flonase. He was noted to have had mild seasonal allergic rhinitis, with mildly pale nasal mucosa, mild congestion, and thin rhinorrhea, and pharynx without erythema or exudate. His diagnoses were gastroenteritis and allergic rhinitis. A November 2007 follow-up note reflects that the Veteran had otolaryngeal symptoms and seasonal allergic rhinitis symptoms controlled with Claritin and Flonase. On examination, he had pink nasal mucosa without congestion or rhinorrhea. December 2007, January 2008, and February 2008 service treatment records reflect a noted history of allergic rhinitis. June 2008 and July 2008 treatment records reflect that allergic rhinitis was no longer noted as a problem in the Veteran's medical history, but that his active medications still included Claritin, last filled in September 2007, and Flonase, last filled April 2008. September, October, and November 2008 records continue to reflect no problems or noted history of allergic rhinitis, and no active medications related to allergies or rhinitis. On his November 2008 separation physical, no allergic rhinitis or history of allergic rhinitis was noted, the Veteran was noted to have had no allergies, and it was noted that the Veteran denied any illness not already disclosed in the medical history. It was noted that the Veteran had no active medications, and there were no complaints or findings related to allergic rhinitis on examination. On VA examination in November 2008, a medical history of allergic rhinitis was noted. It was noted that allergic rhinitis had an onset after basic training in September 2007, when the Veteran started having symptoms of runny nose and watery eyes, which he had perennially and intermittently throughout the day. There were no reports of chronic sinusitis, pain, headaches, breathing issues, dyspnea at rest or with exertion, paranasal discharge, speech impairment, or nasal regurgitation. It was further noted that currently there was no treatment, that the Veteran had not taken any medicine for the past 12 months, and, per the Veteran, the last time he took medication for allergies was October 2007. The diagnosis was allergic rhinitis with no medical treatment and no objective findings, providing some evidence against this claim. In his November 2009 substantive appeal, the Veteran asserted that he had had a tough winter and spring because his allergic rhinitis was active and he could not get medical care, and that he was finally able to get the medical care he needed. In this case, the evidence does not show that an allergic rhinitis disability has existed at any time since the Veteran's September 2008 separation from service. The Board therefore must deny the Veteran's claim for service connection. While allergic rhinitis was listed as a diagnosis in the November 2008 VA examination report, such diagnosis appears to be a repetition of the previous diagnoses documented in the service treatment records and not a diagnosis of a current condition; such diagnosis included notations that there were no objective findings and no medical treatment. The examination report does not reflect a current allergic rhinitis disability, and there is no other competent and probative evidence of record reflecting any such current disability. There is no other post-service medical evidence relating to allergic rhinitis, and the only in-service treatment of allergic rhinitis was in the fall of 2007. While there was treatment for such allergic rhinitis in service, such treatment had stopped by the time of the Veteran's November 2008 separation physical, when no allergic rhinitis or history of allergic rhinitis was noted, the Veteran was noted to have had no allergies, and it was noted that the Veteran had no active medications and denied any illness not already disclosed in the medical history. The Board notes the Veteran's assertions in November 2009 that he had had a tough winter and spring because his allergic rhinitis was active and he could not get medical care for a time after service (which the Board understands). However, again, no objective findings of allergic rhinitis were noted on November 2008 VA examination, the Veteran reported no treatment at that time for allergic rhinitis, and the Veteran reported no allergic rhinitis problems or treatment at the time of his November 2008 separation physical. Furthermore, while in November 2009 the Veteran indicated that he was now able to receive medical treatment for his allergic rhinitis, despite the request from the RO in an October 2008 letter for evidence to substantiate the Veteran's claim, including medical evidence from hospitals, clinics, and private physicians of treatment since service and any other medical reports, the Veteran has not submitted or identified any documentation of treatment or other objective evidence of current allergic rhinitis. The Board simply has no evidence of a current chronic "disability" for VA purposes, and significant evidence against such a finding. Lay evidence can be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins). Furthermore, the Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. However, in this case, while the Veteran asserted in November 2009 that he had had a tough winter and spring because his allergic rhinitis "was active," he has not described what his symptoms or alleged manifestations of active allergic rhinitis were. While the Veteran may be competent to describe such symptoms, which he has not, the diagnosis of the specific medical disorder of allergic rhinitis requires medical expertise. This is particularly the case here considering that the only in-service treatment the Veteran received was for seasonal allergic rhinitis in fall of 2007, after which no allergic rhinitis or allergies were noted again, and that the Veteran contends that his allergic rhinitis after service was active in winter and spring, during which times such seasonal allergic rhinitis was never noted to have been active in service. Also, again, while the Veteran indicated that he was able to receive medical treatment for his allergic rhinitis, he has not submitted or identified any documentation of treatment or other objective evidence of current allergic rhinitis despite requests by the RO for such evidence. We simply have no objective evidence of a problem. Even the Veteran's own statements on this point are, at best, unclear as to whether he has this problem. As the weight of the evidence reflects that the Veteran has not, since his separation from service, had the allergic rhinitis disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, No. 11-3272, 2013 WL 3455655 (Vet. App. July 10, 2013). Accordingly, the claim for service connection for allergic rhinitis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Increased Initial Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbar spine degenerative disc disease is currently rated under Diagnostic Code (DC) 5003 for degenerative arthritis. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. Disabilities of the spine are rated according to either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective from September 26, 2003, the following evaluations are assignable 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: 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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; 20 percent 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; 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. 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. 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. Plate V, 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician. The following evaluations are assignable for intervertebral disc syndrome based on incapacitating episodes: 10 percent where incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent where incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; 40 percent where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and 60 percent where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Where the schedular criteria does not provide for a noncompensable evaluation, such an evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, service treatment records reflect no complaints or findings related to the lumbar spine, including on November 2008 separation physical, at which time musculoskeletal and neurological examinations were normal, providing evidence against this claim. The only post-service medical evidence relating to the Veteran's back is the report of a November 2008 VA examination. At the time of the examination, the Veteran reported onset of lumbar spine pain during active service after he had an injury when carrying a sack of 100 plus pounds for half a year, which strained his low back, and that in January 2008 the pain noticeably worsened. He reported pain of 9/10 every other week of a half-day duration, worse with activity. He further reported that walking for a long period of time made his back tighten, that the location of the pain was in the lower lumbar spine and paraspinal muscle, and that flare-ups occurred with activity precipitating 9/10 pain. He had had no physical therapy, injections, medications, or heat or cold, but rest helped some. On physical examination, posture and gait was normal with no assistive devices. His back was symmetrical without gross deformity or apparent scoliosis. There was no exaggerated thoracic kyphosis or lumbar lordosis, and no palpable spasms or tenderness. There was no loss of muscle tone, atrophy or hypertrophy, and strength testing to gravity resistance was 5/5, within normal limits of age, equal, and bilateral. There was normal and equal bilateral sensation to pin prick and light touch. Forward flexion of the thoracolumbar spine was 0 to 90 degrees, extension was 0 to 30 degrees, right and left lateral flexion was 0 to 30 degrees, and right and left lateral rotation was 0 to 45 degrees. The Veteran was nontender to palpation on the lumbar spine, there was no paravertebral muscle spasm, and sacroiliac joint tenderness and straight leg raising were negative. There was noted to have been no discomfort or difficulty with range of motion testing, and no edema, effusion, tenderness, deformities, weakness, fatigue, or instability found. Additional limitation on flare-ups could not be determined without resorting to mere speculation. Diagnostic testing of the lumbar spine revealed degenerative facet changes at the lumbosacral junction. The diagnosis was lumbar degenerative disease, lumbosacral junction. The examination, overall, provided highly probative evidence against this claim. In his November 2009 substantive appeal, the Veteran contended that the muscles in his back "jump," causing him pain, and that he is not able to fully bend at the waist. He further asserted that, until recently he did not have medical insurance and could not get his back problems addressed (which the Board again totally understands). Considering the pertinent evidence in light of the governing legal authority, the Board finds that an initial compensable rating for lumbar spine degenerative joint disease must be denied. While the Veteran has reported that his back disability is productive of flare-ups of pain every other week of half-day duration, which is made worse with activity, the only objective examination findings of record, noted in the November 2008 VA examination report, reflect full and normal movement of the thoracolumbar spine, with no discomfort or difficulty with range of motion testing, and no tenderness, deformities, weakness, fatigue, or instability, or other functional limitations on objective examination. This examination report is the only objective, competent, and probative evidence of the severity of the Veteran's back disability; again, there are no findings pertinent to the back in the service treatment records, and no further post-service medical documentation relating to the back, and neither the Veteran nor his representative have identified any. The Board notes the Veteran's November 2009 assertions that the muscles in his back "jump," causing him pain, and that he is not able to fully bend at the waist. The Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. 469 (1994). However, such functional impairment, specifically limitation of range of thoracolumbar motion, has not been shown in the objective medical evidence, and the Veteran has not identified any such objective evidence whatsoever to support his assertion. Under DC 5003, for a rating of 10 percent, the evidence must reflect limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion; such objectively confirmed findings are not of record. Moreover, to the extent that the Veteran reports symptoms or functional impairment not consistent with the medical evidence (which in this case, is not clearly indicated), such as inability to bend at the waist, the Board finds such assertions not to be credible. Thus, a compensable rating is not warranted under DC 5003. This finding is not simply based on one examination, but a review of the record as a whole, including the service records which indicate little. Also, while the Board notes the Veteran's November 2009 contention that until recently he did not have medical insurance and could not get the problems with his back addressed, the Veteran has to date not submitted or identified any objective, competent evidence regarding his service-connected lumbar spine degenerative joint disease. This has been despite the fact that the RO, in an October 2008 letter, requested that the Veteran submit or identify such evidence necessary to substantiate his claim, including medical evidence from hospitals, clinics, and private physicians of treatment since service and any other medical reports, more than five years ago. Furthermore, the record does not reflect, and the Veteran has not contended, that he has had any period of acute signs and symptoms due to intervertebral disc syndrome that have required bed rest and treatment prescribed by a physician. Therefore, a compensable rating under DC 5243 is not warranted. The Board has considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). 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 that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record does not reflect that the industrial impairment from the Veteran's lumbar spine degenerative joint disease would be in excess of such disability warranting a noncompensable rating. The Veteran has reported that his back disability is productive of flare-ups of pain every other week of half-day duration, which is made worse with activity. However, the evidence reflects full and normal movement of the thoracolumbar spine, with no discomfort or difficulty with range of motion testing, and no tenderness, deformities, weakness, fatigue, or instability, or other functional limitations on objective examination. Such manifestations are reasonably contemplated by the schedular criteria for a noncompensable rating under DC 5003, which contemplates degenerative joint disease of the nature and severity of disability below that producing limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The record does not reflect that the Veteran's lumbar spine disability has caused impairment in earning capacity above what would be average for such disability. Also, the record does not reflect that the Veteran's disability has been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, an initial compensable rating for lumbar spine degenerative joint disease is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Fenderson. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56 Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in October 2008, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records have been obtained. In the October 2008 letter, the RO requested that the Veteran submit or identify evidence to substantiate his claims, including medical evidence from hospitals, clinics, and private physicians of treatment since service and any other medical reports, but the Veteran has not identified or submitted such evidence. Also, the Veteran was provided a VA examination in November 2008. This examination and associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination report was based on examination of the Veteran by an examiner with appropriate expertise who reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes the argument of the Veteran's representative in a June 2013 brief that the Veteran's most recent VA examination of his spine was in November 2008, that the Veteran had furnished medical treatment records that indicate continued treatment for the claimed condition on appeal, and that consideration should be given to remanding the matter for a new VA spine examination to determine the current level of the Veteran's disability. When a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination or other evidence of worsening. VAOPGCPREC 11-95 (1995). However, in this case, while the Veteran asserted some symptomatology conflicting with the November 2008 VA examination findings, he has not asserted that his back disability has worsened since that examination. Also, contrary to the Veteran's representative's assertions, the record does not reflect that the Veteran has furnished any medical treatment records indicating continued treatment for his lumbar spine condition. Thus, the Board finds that remand for a new examination and further delay of a decision on the merits in this case is not warranted. Importantly, if the Veteran's back does become worse, the Veteran is encouraged to resubmit his claim. However, the Board, based on detailed review of the facts of these case, sees no such contention. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for allergic rhinitis is denied. An initial compensable rating for lumbar spine degenerative joint disease is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs