Citation Nr: 1325726 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 07-30 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 20 percent prior to June 3, 2011, for service-connected degenerative disc disease, residuals of a lumbar spine injury, status post fracture at L1 and L4 with compression deformities and anterior wedging of T12. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from September 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By a June 2011 decision, the RO increased the rating for the Veteran's service-connected back disability from 20 to 40 percent effective from June 3, 2011. In his July 2011 correspondence, the Veteran asserted that, although he was satisfied with the RO's award dated in the prior month, he disagreed with the "adjustment date." The Board construed this statement to reflect the Veteran's disagreement with the initial portion of the appeal period for his service-connected lumbar spine disability. In other words, the issue of entitlement to a disability rating in excess of 20 percent prior to June 3, 2011 for the service-connected degenerative disc disease, residuals of a lumbar spine injury, status post fracture at L1 and L4 with compression deformities and anterior wedging of T12 remained pending. The Board then remanded the issue in March 2012, for additional evidentiary development and adjudicative action. After completing such development, the AMC continued the denial of a disability rating in excess of 20 percent for the Veteran's lumbar spine disability prior June 3, 2011 (as reflected in an April 2012 SSOC), and returned the matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. FINDING OF FACT Prior to June 3, 2011, the Veteran's service-connected lumbar spine disability was manifested by limitation of forward flexion of the thoracolumbar spine to 60 degrees with pain, but no objective evidence of ankylosis, chronic neurologic disability manifestations, or incapacitating episodes necessitating physician-prescribed bed rest. CONCLUSION OF LAW For the period prior to June 3, 2011, the criteria for a disability rating in excess of 20 percent for degenerative disc disease, residuals of a lumbar spine injury, status post fracture at L1 and L4 with compression deformities and anterior wedging of T12 were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes DCs 5235-5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in January 2006 and March 2006 of VA's duty to assist him in substantiating his increased rating claim under the VCAA, and the effect of this duty upon his claim. Another letter, sent prior to the initial adjudication of the claim, informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. A subsequent letter in September 2009 notified the Veteran of the types of evidence that may reflect a worsening of his service-connected lumbar spine disorder, including the nature and symptoms of the condition; the severity and duration of the symptoms; and the impact of the condition and symptoms on employment and daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Any timing defect of this correspondence was cured by the RO's subsequent readjudication of the claim and issuance of a Supplemental Statement of the Case in June 2011. Together, these letters addressed all notice elements. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. He submitted personal statements, and representative argument. The Veteran has not indicated that he is in receipt of Social Security Administration disability benefits or that any additional pertinent evidence exists. Further, the Veteran's Virtual VA electronic file has been reviewed and no additional relevant evidence has been associated therewith. Two VA examinations dated prior to June 3, 2011 are of record and the Board finds that they are more than adequate. The examiners elicited from the Veteran his history of complaints and symptoms and provided pertinent clinical findings detailing the results of the examination to allow for effective evaluation of the Veteran's service-connected back disorder, including a thorough discussion of the effect of his symptoms on his functioning. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board is also satisfied that the AMC has substantially complied with its February 2012 remand directives as they pertain to the increased rating matter decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Records identified by the Veteran have been associated with the claims file. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claims under the Veterans Claims Assistance Act of 2000. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks a disability rating in excess of 20 percent for his service-connected lumbar spine disability for the period prior to June 3, 2011. He maintains that his condition has slowly deteriorated and affected his employment causing him to opt for early retirement in September 2004 as he was unable to perform his duties. However he also continues to work part-time 2-3 days per week. See VA Forms 21-4138, Statement in Support of Claim received in February 2006 and August 2006. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary to make an accurate evaluation [38 C.F.R. §§ 4.2, 4.41], the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection, and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). By way of history, in a January 2003 rating action, service connection was granted for degenerative disc disease, residuals of a lumbar spine injury, status post fracture at L1 and L4 with compression deformities and anterior wedging of T12. A 20 percent disability rating was assigned. The Veteran filed his claim for increase in January 2006. Currently the Veteran's service-connected lumbar spine disability is rated under DCs 5235-5242. The hyphenated diagnostic codes in this case indicate vertebral fracture/dislocation under DC 5235 as the service-connected disorder, and degenerative arthritis of the spine under DC 5242 as a residual disabling condition. There are no separate disability ratings in effect for associated neurologic impairment. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either 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 results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the revised General Rating Formula for Diseases and Injuries of the Spine, 20 percent evaluation is appropriate where there is 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 is 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 evaluation for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. Normal forward flexion of the thoracolumbar segment of the 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 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. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a , Plate V. Any associated neurological abnormalities (e.g., bowel or bladder impairment) are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Evidence relevant to the severity of the Veteran's service-connected low back disorder includes, in addition to his assertions of chronic pain and difficulties with prolonged standing and walking, VA clinical records and VA examination reports. During a March 2006 VA examination to assess the current state of the Veteran's service-connected back disability, the examiner noted the Veteran's history of old compression fractures at the T-12 and L1-L4 areas, which were treated conservatively. A the time of the examination, the Veteran complained of persistent pain which caused difficulty with prolonged sitting and standing. He also reported occasional radiation to the left leg. The Veteran reported that he retired early as he was unable to do the prolonged standing and walking required by his job. Examination of the back was negative for obvious deformity, increased kyphosis, or scoliosis. The Veteran could forward flex to 70 degrees, extend to 0 degrees, lateral flex to 20 degrees bilaterally, and rotate to 20 degrees, bilaterally. There was pain throughout the range of motion. On repetitive use testing the Veteran had increased aching, pain, soreness, tenderness, and fatigability but no change or flare-ups were noted. The Veteran did have muscle tenderness, but no spasms. Neurological examination was normal and there were no incapacitating episodes in the past year. The diagnosis was compression fractures, T1, L1-L4 with associated back pain. VA outpatient treatment reports dated in 2006 show continued evaluation and treatment of the Veteran's low back pain which was shown to be somewhat responsive to pain medications. Clinical findings from March 2006, show the Veteran was evaluated for complaints of increasing low back pain, rated as 5/10, with activity increasing the pain to 8/10. The pain extended across the entire back, but did not radiate into the buttocks or legs. The Veteran noted some back spasms, but denied numbness, leg weakness, paresthesias, or changes in bowel/bladder function. Clinical findings included limited forward flexion and extension, but there were no specific findings from range-of-motion testing, in degrees. There was tenderness to the lumbar paraspinal without focal spasm. Strength was symmetrical bilaterally and straight leg raising was positive to 40 degrees causing increased back discomfort. There were no leg symptoms and gait was normal. Later records show that by June 2006, the Veteran complained that the pain was beginning to radiate to his legs. When examined by VA in May 2007, the Veteran's complaints of chronic daily pain were largely unchanged from the last examination. He described the pain as sharp with an intensity of 5/10. He indicated that pain medication provided some relief. The back condition did not impair the Veteran's ability to walk and he did not require the use of assistive devices. Examination of the back revealed a mild kyphotic curvature to the thoracic spine. Forward flexion was to 60 degrees, with pain starting at 40 degrees. Extension was to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to at 30 degrees, all with pain. Rotation was full at 30 degrees bilaterally without pain. There was no tenderness to palpation paraspinally to the right of the spine from L1 through L4 and no palpable spasm was noted. On repetitive testing the Veteran had increased pain with forward flexion and extension with no change in range of motion. He did not describe flare-ups, but noted that the pain was constant and always present. Neurologically the Veteran was able to ambulate on heels and toes with pain, but without difficulty. Deep tendon reflexes were 2/4 and equal in the lower extremities and muscle testing was 5/5. There were no gross sensory deficits. The Veteran noted that he had been treated by his medical provided at least three times over the past 12 months and that his last treatment regimen included a prescription for Tramadol. The examiner reviewed the X-rays from March 2006 noting findings consistent with a stable L4 mild wedge compression fracture. The diagnosis was degenerative disc disease lumbar spine with history of remote fracture to L1-L4 and wedging of T12. An addendum to that opinion the examiner clarified that while the Veteran had used medications prescribed by a physician over the past 12 months, he had not been seen by a physician for his back pain during that time. In addition, there had been no prescribed bed rest by a physician over the last 12 months and no incapacitating episodes. The remaining VA treatment records dated from 2007 to 2011 show continued evaluation and conservative treatment of the Veteran's lumbar spine disability consisting of pain medications, muscle relaxants, and physical therapy. In general, the clinical findings are not materially different from those reported on prior VA examinations and during outpatient visits and show that while the Veteran continued to report chronic pain and related symptoms, there is no indication of a significant worsening or additional complaints or symptoms to warrant a higher evaluation for his lumbar spine disability. There were no other specific findings from range-of-motion testing, in degrees, to permit meaningful comparison with the rating criteria. There were no neurological symptoms noted, no days of prescribed bed rest for intervertebral disc syndrome, and no findings or history to suggest any bladder, bowel, or erectile dysfunction. These records do include, however, a May 2007 radiology report which showed mild degenerative disc disease of the thoracic and lumbar spine and interval wedging of L4 and face joint degenerative changes. There was no change in the lumbar spine from a prior study. A June 2010 radiology report confirmed multilevel disc related degenerative changes involving the lumbar spine. The most recent of these records show that in September 2010, the Veteran began physical therapy. It was noted that his back pain had changed since June 2010. The Veteran reported that originally his chronic pain had limited his ability to stand and that he now had problems with sitting. Clinical findings at that time showed mild decreased flexion and extension. There were no obvious abnormalities except for increased thoracic kyphosis. Neurological examination was normal. It was noted that the Veteran was able to take medication with good results and good control of the back pain. MRI findings showed alignment of the thoracic spine was maintained with no significant compression fractures. There was mild disc related degenerative changes at the thoracolumbar junction. There were also multilevel disc-related changes involving the lumbar spine, with no significant vertebral body compression fracture. It was noted that the morphology of the L4 vertebra was altered. See Physical Therapy Notes dated September 7, 2010. The Veteran was discharged from physical therapy in mid October 2010. At that time he reported improvement from the physical therapy sessions and felt he was back to baseline. He was to continue with a home exercise program. See Physical Therapy Discharge Note dated October 15, 2010. Applying the regulations to the facts in the case, the Board finds that prior to June 3, 2011, the criteria for a rating in excess of 20 percent for the Veteran's lumbar spine disability were not met. Both the medical evidence and the Veteran's statements reflect that the predominant symptom appears to be chronic back pain particularly with certain activities, such as prolonged walking, sitting or bending. However, for purposes of evaluating the back disorders the subjective descriptions must be reviewed in light of the objective findings. While the record shows that range of motion was restricted, the Veteran's flexion to at least 60 degrees (40 degrees without pain) would not qualify him for the next higher rating of 40 percent, which necessitates forward flexion of the thoracolumbar spine to 30 degrees or less. Furthermore his measurable range of lumbar spine motion indicates that he does not have ankylosis, or unfavorable ankylosis, or a disability akin to an individual with ankylosis as required for a 50 percent, or 100 percent rating. Thus, the Board finds that prior to June 3, 2011, the criteria for an evaluation greater than 20 percent under DC 5242 are not met. The Board has also considered DeLuca v. Brown, 8 Vet. App. 202 (1995, in reaching its conclusion in this case. However, the record does not include evidence that is both credible and persuasive documenting any additional functional limitation which would warrant a higher rating under the applicable rating criteria. The Veteran's back disability causes pain with walking or prolonged standing. There is no dispute on this point. The record also clearly establishes that he is capable of movement, ambulation, and standing, albeit to a limited extent, despite his pain. In fact, even with complaints of pain, the clinical record reflects his ability to forward flex to at least 40 degrees, with additional motion possible beyond the level of pain, which still leaves the degree of limitation of motion somewhat short of what is required for a rating in excess of 20 percent (i.e., 30 degrees of forward flexion or less) under DC 5242. Moreover neither he nor any examiner has established that pain, weakness, or limitation of motion result in functional loss that would equate to ankylosis of the lumbar spine. As such, the provisions of 38 C.F.R. §§ 4.40, 4.45 have been considered, but they do not provide a basis for the assignment of a higher rating. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not require a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Indeed, the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Here, a higher rating based on pain without any quantifiable loss due to actual pain does not serve as basis for an increased rating. The 20 percent disability rating prior to June 3, 2011 adequately compensated the Veteran for any painful motion and functional loss. The Board has considered evaluation of the Veteran's service-connected lumbar spine disability under all other potentially appropriate diagnostic codes to determine whether a higher evaluation can be assigned. With respect to a higher rating based on the frequency and extent of incapacitating episodes (defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician), the Board acknowledges the Veteran's accounts of chronic back pain. VA treatment records prior to June 3, 2011 do reflect that the Veteran experienced chronic back pain that involved regular visits to a physician. However, while these records reflect the prescription of medication and other treatments, such as physical therapy, none of them reflect prescribed bed rest. As such the evidence does not illustrate doctor-prescribed bed rest due to incapacitating episodes for any period to justify a higher rating under DC 5243. See 38 C.F.R. § 4.71a. The Board has also considered whether increased evaluations are in order in this case when separately evaluating and combining the orthopedic and neurologic manifestations of the Veteran's lumbar spine disability. Although the Veteran is shown to have degenerative disc disease, aside from past sporadic episodes of radiating back pain that appear to have since resolved completely, neurological evaluations were negative for any deficits and there was no clinical evidence of radiculopathy. As there was no significant clinical or diagnostic evidence of any neurological findings, there is no basis to assign a separate rating under any of the applicable neurological rating codes. 38 C.F.R. § 4.71a. The Board has also taken into account the provisions of 38 C.F.R. § 3.321(b)(1), which stipulate that an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, 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). The schedular evaluations in this case are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the Veteran's service-connected lumbar spine disability, but the required manifestations have not been shown. Moreover, there is no evidence that this service-connected disability required hospitalization at any pertinent time prior to June 3, 2011 and the VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Evidence in the claims file reveals that the Veteran took an early retirement as he was unable to perform the prolonged standing and walking required by his job. However he also indicated he continues to be employed on a part-time basis, which requires some amount of physical activity. While the Board is sympathetic to the difficulties the Veteran's service-connected lumbar spine disability may cause him in maintaining employment, the evidence prior to June 3, 2011, does not reflect that the average industrial impairment he suffers is in excess of that contemplated by the assigned evaluation, or that application of the schedular criteria is otherwise rendered impractical. Although the Board has no reason to doubt that the Veteran's symptomatology adversely impacts his employability, this is specifically contemplated by the 20 rating assigned prior to June 3, 2011. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In reaching the above conclusions, the Board has not overlooked the Veteran's contentions, his complaints to healthcare providers, or his written statements. It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints. The Board realizes that he may genuinely believe that the severity of his lumbar spine disability merits a higher rating and he is competent to describe readily visible and identifiable symptoms. However the objective evidence does not otherwise substantiate the subjective complaints, therefore his assertions do not suffice to assign a higher rating prior to June 3, 2011. In other words, there is no means to increase the disability rating based on the medical evidence currently of record, especially because no other codes of the rating schedule provide a basis for the application of a higher rating. Consequently, the criteria for the assignment of a disability rating in excess of 20 percent prior to June 3, 2011 are not met. The Board has reviewed the claim mindful of the guidance of Hart, supra. The level of disability shown during the timeframe in question is encompassed by the rating assigned, and, with due consideration to the provisions of 38 C.F.R. § 4.7, a higher evaluation is not warranted for this disability. There is no basis for the assignment of staged ratings. Further, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable as he has indicated that he following his retirement he continued to work on a part-time basis. Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER A disability rating in excess of 20 percent prior to June 3, 2011 for the service-connected degenerative disc disease, residuals of a lumbar spine injury, status post fracture at L1 and L4 with compression deformities and anterior wedging of T12 is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs