Citation Nr: 1327300 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-03 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for mild degenerative changes of the lumbar spine with anterior osteophytes (hereinafter, "lumbar spine disorder") prior to November 26, 2012, and to a rating in excess of 20 percent thereafter. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1986, and from March 1987 to April 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which inter alia, continued a 10 percent disability rating for the Veteran's service-connected lumbar spine disability and denied service connection for a bilateral knee disability. The Board notes that the RO did not explicitly deny a claim of entitlement to TDIU. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran reported at a May 2010 VA examination that he was unemployed but not retired, and that he stopped working in 1998 because he was in bed all the time. As he has indicated such incidents were due, at least in part, to his service-connected lumbar spine disorder, the Board finds that the issue of entitlement to TDIU has been raised by the record, and must be addressed in adjudication of the lumbar spine claim. The bilateral knee and lumbar spine issues were previously denied by the Board in a July 2011 decision. The Veteran appealed that decision to the Court. By a March 2012 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the portion of the Board's July 2011 decision to the extent it denied service connection for a bilateral knee disability and an increased rating for the Veteran's lumbar spine disability, and remanded those issues for action consistent with the terms set forth in the JMR. In October 2012, the Board remanded the appeal for further development to include affording the Veteran a new examination of his service-connected lumbar spine disorder. The Veteran subsequently underwent a VA examination of the spine in November 2012. All other development directed by the Board's remand regarding the lumbar spine claim appears to have been substantially accomplished. Moreover, the Veteran has not alleged any deficiency in complying with the Board's remand directives. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998), regarding this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board observes that a February 2013 rating decision assigned a 20 percent rating for the Veteran's service-connected lumbar spine disorder, effective from November 26, 2012 (date of VA examination). Accordingly, the appellate claim has been identified to reflect the assignment of this increased rating. The February 2013 rating decision also granted service connection for a bilateral knee disorder. Consequently, the issue on appeal has been resolved and is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Veteran has recently filed a claim for an increased rating for his knee disabilities. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that some are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. For the reasons explained below, the issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's service-connected lumbar spine disorder has been consistently manifested by complaints of pain throughout the pendency of the case. 2. Prior to November 26, 2012, even when taking into the Veteran's complaints of pain and functional impairment, his service-connected lumbar spine disorder was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less; or, combined range of motion of the thoracolumbar spine limited to 120 degrees or less; 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. 3. For the period from November 26, 2012, even when taking into the Veteran's complaints of pain and functional impairment, his service-connected lumbar spine disorder has not been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less. 4. The record does not reflect the Veteran has had any associated neurologic impairment from his service-connected lumbar spine disorder which warrants separate evaluation. 5. The Veteran's service-connected lumbar spine disorder is not manifested by intervertebral disc syndrome nor is there evidence of incapacitating episodes as defined by VA regulation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disorder prior to November 26, 2012, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disorder from November 26, 2012, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in May 2009, which is clearly prior to the August 2009 rating decision that is the subject of this appeal. He was also sent additional notification via a November 2012 letter, followed by readjudication of the appeal by a February 2013 Supplemental Statement of the Case (SSOC) which "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s). Further, the May 2009 letter included the specific schedular criteria used to evaluate spine disabilities. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his lumbar spine claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board further notes that it previously determined in June 2011 that the duty to notify had been satisfied, and nothing in the March 2012 Court Order or the JMR asserted there was any deficiency in the notification provided in this case. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). Accordingly, the Board is confident that if the Court had any substantive comments concerning the Board's findings regarding the duty to notify, such would have surfaced in the JMR or the Court Order so that any deficiencies could be corrected. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. Various records were obtained and considered in conjunction with this case. Further, the Veteran has had the opportunity to present evidence and argument in support of his lumbar spine claim, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence denoting symptoms of his service-connected lumbar spine disorder that is not reflected by the evidence already of record. Although he initially requested a hearing before a Decision Review Officer (DRO) in conjunction with this appeal, he withdrew his hearing request in April 2010 in lieu of upcoming VA examinations (which were accomplished in May 2010). The Board further notes the Veteran was accorded VA medical examinations in May 2009, May 2010, and November 2012, which included findings regarding the symptomatology of his service-connected lumbar spine disorder. The Board notes that these findings appear consistent with the treatment records and other evidence on file, and no prejudice has been demonstrated therein. Granted, the JMR asserted that the 2009 and 2010 VA examinations were inadequate as the examiners did not note at what point the Veteran's range of motion became painful. However, the November 2012 VA examination did note at what point the range of motion became painful, and no other deficiency has been alleged or identified regarding this examination. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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 shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). More recently, 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Court has recently held 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). 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The General Rating Formula for Diseases and Injuries of the Spine provides that 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 rating is warranted 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. An evaluation of 20 percent 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 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). Analysis In this case, and for the reasons stated below, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his service-connected lumbar spine disorder prior to November 26, 2012, or to a rating in excess of 20 percent thereafter. Initially, the Board acknowledges that the Veteran's service-connected lumbar spine disorder has been consistently manifested by complaints of pain throughout the pendency of the case. For example, at the May 2009 VA examination the Veteran reported that he experienced continuous strong, low back pain; with severe flare-ups every 3 to 4 months, lasting from 1 to 2 days. At the May 2010 VA examination he reported that he experiences severe flare-ups of back pain weekly, which lasted for hours, during which he "can't do anything." At the November 2012 VA examination he reported increased pain in his back, and that when his pain gets severe (worsened by cold weather) he would just stay in bed. The treatment records on file also note flare-ups of back pain. Therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are for consideration in the instant case. Despite the foregoing, the Board notes that even when taking into account the Veteran's complaints of pain, the record does not reflect, prior to November 26, 2012, his service-connected lumbar spine disorder was manifested by forward flexion of the thoracolumbar spine of 60 degrees or less; or, the combined range of motion of the thoracolumbar spine of 120 degrees or less. The May 2009 VA examination showed the Veteran to have forward flexion to 85 degrees, extension to 20 degrees, as well as lateral flexion and rotation to each side of 30 degrees. Although there was objective evidence of pain with motion, there was no additional limitation of motion after three repetitions of motion. The May 2010 VA examination showed forward flexion to 75 degrees, extension to 10 degrees, lateral flexion to each side of 15 degrees, and rotation to each side of 20 degrees. Once again, there was objective evidence of pain with motion, but no additional limitation of motion after three repetitions of motion. Moreover, even though the treatment records note complaints of low back pain, there does not appear to be any specific range of motion findings for the period prior to November 26, 2012. In sum, the only specific range of motion testing conducted during the period prior to November 26, 2012, shows forward flexion in excess of 60 degrees and the combined range of motion in excess of 120 degrees even after repetitive testing. The Board acknowledges that the JMR criticized the July 2011 decision asserting that it did not adequately consider the Veteran's reported flare-ups of low back pain in connection with the rating assigned for the Veteran's spine disability. In that regard, the JMR pointed to various treatment records in the claims file which reflect complaints of flare-ups and suggest that medical evidence of record "may not have been detailed enough for the Board to have made an informed evaluation of additional functional limitation due to [the Veteran's] flare-ups." As basis for this argument, the JMR noted that while objective evidence of pain on active motion of the thoracolumbar spine was noted during the 2009 and 2010 VA examinations, the VA examiner did not delineate in either report at what point in the Veteran's thoracolumbar motion pain became present. The JMR also noted that the examiner did not offer an opinion in either report as to the effects of the Veteran's flare-ups on his thoracolumbar range of motion, or, whether pain during flare-ups could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. For these reasons, the JMR suggested the 2009 and 2010 opinions are incomplete. The Board does not dispute that the 2009 and 2010 VA examinations did not note when pain originated during the Veteran's range of motion testing, and that there were notations of flare-ups of pain on these examinations as well as the treatment records on file. However, the Board notes that records noted in the JMR regarding the flare-ups - such as records dated in June 2001 and February 2004, as well as an April 2005 VA examination - were on file at the time of the August 2005 rating decision that established service connection for the lumbar spine disorder and assigned the initial 10 percent rating. The Veteran did not appeal that decision, and the Board cannot make a different determination based upon the same evidence as a prior final decision in the absence of clear and unmistakable error (CUE). No CUE has been alleged regarding this decision. Moreover, none of the other evidence on file for the period prior to November 26, 2012, to include the evidence cited in the JMR, contained any specific range of motion findings during these flare-ups nor has the Veteran identified any such findings on his own. In view of the foregoing, the Board must find that there is simply no evidence by which it can determine the Veteran has limitation of motion of the lumbar spine, to include during flare-ups, that would warrant assignment of a rating in excess of 10 percent prior to November 26, 2012. Although the VA examiner did not explicitly express an opinion as to the effects of the Veteran's flare-ups on his thoracolumbar range of motion, or, whether pain during flare-ups could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, three repetitions were conducted on the range of motion testing in 2009 and 2010 in an effort to simulate such impairment during flare-ups. Even though this may not have produced the exact level of impairment the Veteran experiences during flare-ups, there is nothing else in the record for this period upon which the Board can base its determination as to the effect of pain on range of motion. Any subsequent opinion, to include the November 2012 VA examination, would be based upon the examination findings made at that time and not prior to that time. Further, while the November 2012 VA examination findings were found to warrant a rating in excess of 10 percent, the Board notes that, as detailed below, they also showed significant decrease in the initial range of motion results even prior to repetitive testing. For these reasons, the Board finds that the record does not warrant a rating in excess of 10 percent prior to November 26, 2012, for the Veteran's service-connected lumbar spine disorder on the basis of limitation of motion even when taking into account his complaints of pain. The Board also notes that the May 2009 VA examination found that there were no muscle spasms or abnormal spinal curvatures; motor and sensory examinations were normal. Similarly, the May 2010 VA examination found there were no muscle spasms or abnormal spinal curvatures. Motor and sensory examinations were again normal. X-rays revealed mild spondylosis, but otherwise normal appearing vertebral bodies, disc spaces and posterior elements. As such, these examinations do not reflect the service-connected lumbar spine disorder was manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. No such manifestations are demonstrated by the treatment records during this period either, nor has the Veteran contended otherwise. For these reasons, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent prior to November 26, 2012, under the General Rating Formula for Diseases and Injuries of the Spine. For the period from November 26, 2012, even when taking into account the Veteran's complaints of pain, his service-connected lumbar spine disorder has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. The November 2012 VA examination found the Veteran to have forward flexion to 60 degrees, with pain originating at 15 degrees. Following at least three repetitions, he had forward flexion to 40 degrees. Moreover, the examiner stated that after repetitive use, the Veteran had less movement than normal, weakened movement, excess fatigability, and pain on movement. Nevertheless, as already stated, the Veteran still had forward flexion in excess of 30 degrees. Although pain was noted at 15 degrees, he was still able to bend to 60 degrees, and limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board also reiterates that the Veteran has not identified or alleged any deficiency regarding this examination, which would include whether the amount of repetitive testing was sufficient to evaluate the extent of impairment due to pain during flare-ups. No other evidence is of record for this period which includes specific range of motion results, nor has the Veteran identified any evidence which demonstrates he has forward flexion of less than 30 degrees during flare-ups. Therefore, the records does not show a rating in excess of 20 percent is warranted for this period based upon limitation of motion even when taking into account the Veteran's complaints of pain. The Board also notes that the Veteran has not been diagnosed with ankylosis of the spine throughout the pendency of this case. In fact, the May 2010 VA examination specifically found there was no thoracolumbar ankylosis, and there were no findings of ankylosis noted on the more recent November 2012 VA examination. In this case, the aforementioned range of motion findings clearly reflect the Veteran has mobility of the lumbar spine; i.e., the lumbar spine is not immobile. For these reasons, the Board finds that the Veteran does not more nearly approximate the criteria for a rating in excess of 20 percent from November 26, 2012, under the General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code. Further, the Veteran has contended that his pain radiates to his lower extremities. However, while the Veteran is competent, as a lay person, to describe such symptoms, the Board finds that competent medical evidence is required to determine whether such symptoms are due to a neurologic disorder, and, if so, whether such a disorder is due to the service-connected lumbar spine disorder. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education for his contentions to render a competent medical opinion on this point. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). No associated neurologic disabilities are demonstrated in the treatment records or the VA examinations on file. As already noted, motor and sensory examinations were normal on the May 2009 and May 2010 VA examinations. Motor and sensory examinations were also normal in November 2012. Moreover, the November 2012 VA examiner specifically found the Veteran did not have radiculopathy or any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or gladder problems/pathologic reflexes). Therefore, the record does not reflect the Veteran has had any associated neurologic impairment from his service-connected lumbar spine disorder which warrant separate evaluation. Indeed, radiating pain is actually contemplated in the ratings assigned under the General Rating Formula for Disease and Injuries of the Spine (for evaluating Diagnostic Codes 5235 to 5242 "[w]ith or without symptoms such as pain (whether or not it radiates) ..."). 38 C.F.R. § 4.71a Regarding the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that while the Veteran is service connected for degenerative changes of the lumbar spine, he is not service connected for intervertebral disc syndrome (IVDS). In any event, the record does not reflect his lumbar spine is currently manifested by IVDS. For example, the November 2012 VA examination specifically found he did not have intervertebral disc syndrome. Moreover, even though the record reflects the Veteran experiences flare-ups of pain, and reported at the November 2012 VA examination that the pain gets so severe that he would just stay in bed, there is no evidence of incapacitating episodes as defined by VA regulation. In other words, a thorough review of the evidence of record does not reflect he experiences periods of acute signs and symptoms due to his lumbar spine disorder that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1) (Emphasis added). In addition, the June 2009 and May 2010 VA examinations specifically found that he did not have incapacitating episodes. Additionally, the Veteran has not contended that his service-connected lumbar spine disability warrants evaluation on the basis of incapacitating episodes. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not for application in the instant case. The Board further notes that even if it were to consider the Veteran's flare-ups of pain as analogous to incapacitating episodes, he would still not be entitled to a rating in excess of 10 percent prior to November 26, 2012, or to a rating in excess of 20 percent thereafter. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). For example, at the May 2009 VA examination he reported that he experienced severe flare-ups of pain every 3 to 4 months, which lasted from 1 to 2 days. Even assuming he experiences the maximum possible flare-ups based upon this description (every 3 months, lasting for 2 days), that would result in a total of 8 days, which is less than the 2 to 4 week duration necessary for a rating in excess of 10 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Although he continued to report flare-ups of pain following the May 2009 VA examination, to include on a weekly basis and lasting for hours on the May 2010 VA examination, he has not identified any other specific duration of such that would indicate they last for periods necessary for a rating in excess of 10 percent prior to November 26, 2012, or 20 percent thereafter under this Formula. In fact, as already noted, the Veteran has not contended that his service-connected lumbar spine disability warrants evaluation on the basis of incapacitating episodes, even though the Board made a similar finding in the June 2011 decision. In view of the foregoing, the Board finds that the Veteran's service-connected lumbar spine disorder does not warrant a schedular rating in excess of 10 percent at any time prior to November 26, 2012, or a rating in excess of 20 percent at any time thereafter. Therefore, the preponderance of the evidence is against the claim for such higher ratings. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence, to include consideration of functional loss pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, supra. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. The Board acknowledges that a claim for TDIU is being remanded. However, as noted above, any impact on the Veteran's employment would need to be considered for extraschedular purposes only if the schedular criteria are inadequate to rate his service-connected lumbar spine disability is inadequate. Thun, 22 Vet. App at 118 ("[I]n cases regarding whether extraschedular referral is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule."). As the schedular ratings adequately contemplate his lumbar spine disability, referral for extraschedular consideration is not warranted. Thus, remand of the issue decided herein is not required. See Gurley v. Nicholson, 20 Vet. App. 573, 576 (2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 120 (2007) (resolution of claim for a higher initial disability rating by the Board or this Court is not dependent on VA's adjudication of the TDIU claim). For these reasons, the Veteran's appeal for a rating in excess of 10 percent for his service-connected lumbar spine disorder prior to November 26, 2012, and a rating in excess of 20 percent thereafter, is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A rating in excess of 10 percent for the Veteran's service-connected lumbar spine disorder prior to November 26, 2012, is denied. A rating in excess of 20 percent for the Veteran's service-connected lumbar spine disorder from November 26, 2012, is denied. REMAND As noted in the Introduction, the Board has determined that the issue of entitlement to TDIU must be addressed as part of this appeal pursuant to the holding of Rice, supra. However, as this issue was not developed or adjudicated below, it does not appear the Veteran has been provided with adequate notification as to what is necessary to support such a claim, nor has he had the opportunity to present evidence and argument in support thereof. Therefore, a remand is required in order to provide the Veteran with such notice and opportunity. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. The Veteran should also be asked to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After completing any additional development deemed necessary, the AMC/RO should adjudicate the issue of entitlement to a TDIU due to his service-connected lumbar spine disability. 3. If the claim for TDIU due to his lumbar spine disability is denied, the Veteran and his representative should be furnished a supplemental statement of the case which includes the laws pertinent to a TDIU claim. The Veteran and his representative should be provided with an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs