Citation Nr: 1327355 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-06 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 20 percent for degenerative joint disease and scoliosis of the thoracolumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from February 1954 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma, wherein the RO granted service connection for degenerative joint disease and scoliosis of the thoracolumbar spine and assigned a 20 percent disability rating, effective from August 4, 2008. The Veteran appealed for the assignment of a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2012. A copy of the transcript of that hearing is of record. In December 2012, the Board remanded this case for additional development. The purposes of this remand have been met and the case is ready for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected back disability, characterized as degenerative joint disease and scoliosis of the thoracolumbar spine, has been manifested by pain and limitation of motion; it is not shown to be productive of limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; the Veteran does not have ankylosis in the thoracolumbar spine; at no time has the Veteran's back disability been manifested by incapacitating episodes or symptoms necessitating bed rest prescribed by a physician or additional neurological impairment (aside from neuropathy of the right lower extremity, rated 10 percent disabling, neuropathy of the left lower extremity, rated 10 percent disabling from August 4, 2008 to July 2, 2013, and neuropathy of the left lower extremity with L5-S1 radiculopathy, rated 30 percent disabling on and after July 3, 2013), including but not limited to bowel and bladder impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for degenerative joint disease and scoliosis of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in September 2008 and February 2013 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence 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. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in September 2008 and February 2013 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the September 2008 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in September 2008, prior to the appealed from rating decision, along with the subsequent notice provided in February 2013, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in a July 2013 supplemental statement of the case (SSOC) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which pertains to a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. However, this decision was recently vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Also, since the claim on appeal is a downstream issue from that of service connection, Vazquez notice was never required. See VAOPGCPREC 8- 2003 (Dec. 22, 2003). The Board finds that the September 2008 and February 2013 letters substantially satisfy the current notification requirements for the claim on appeal. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. Shinseki v. Sanders, 129, S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The evidence of record includes his service treatment records (STRs) and post-service VA treatment records. There is no suggestion that any additional evidence relevant to this claim still needs to be obtained. The Board also finds compliance with its December 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). In the December 2012 remand, the Board noted that the Veteran's January 2011 VA examination was inadequate because range of motion testing was of a limited nature and did not provide an appropriate disability picture for the Veteran's actual range of motion. Thus, the RO was directed to afford the Veteran a new VA examination to ascertain the current severity of the Veteran's back disability. In July 2013, the Veteran had the requested VA compensation examination, which provided the information needed to reassess the severity of his disability. Indeed, the examination revealed findings that are adequate for rating the Veteran's back disability, including adequate range of motion findings. The Board has the level of information needed to properly rate this disability, both in terms of the specific rating criteria and the effect of this disability on his functioning. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall, supra. The Veteran also had a Travel Board hearing before a VLJ of the Board in October 2012, during which the Veteran presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked that may be advantageous to the appellant's position. In this case, the VLJ set forth the issue to be discussed during the hearing and sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might substantiate the claim. The VLJ notified the Veteran that, in order to prove his claim, he had to show that the rating assigned to his service-connected back disability was not high enough in light of the amount of functional impairment that his disability caused. Thus, he was requested to explain his symptoms, their severity, and consequent impairment, including in his day-to-day activities. Moreover, neither he nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conducting of that Board hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of these requirements. See Dalton v. Nichsolson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicating this claim based on the current record. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Factual Background In August 2008, the Veteran filed a claim of entitlement to service connection for a back disability. He maintained that when he was in the military, he performed approximately 42 parachute jumps from airplanes. The Veteran noted that due to the jumps, he developed a back disability. In December 2008, the Veteran underwent a VA examination which was conducted by QTC Services. He stated that he had been diagnosed with neuropathy of the bilateral lower extremities and that the condition had existed for 51 years. The neuropathy specifically affected his feet. Due to the nerve disease, there was tingling and numbness, pain, anesthesia, and paralysis and burning in the feet, bilaterally. There was no abnormal sensation or weakness of the affected parts. Regarding any functional impairment due to the neuropathy, the Veteran indicated that he was unable to walk or run any distance and that he could not drive without cruise control. Upon neurological evaluation of the lower extremities, motor function was within normal limits. Sensory function was abnormal with decreased sensation of the lower extremities. The lower extremity reflexes were knee jerk 2+, bilaterally, and ankle jerk 2+, bilaterally. The examiner noted that there was no specific peripheral nerve identified because the Veteran presented with a stocking type neuropathy. However, the peripheral nerve examination revealed neuritis. There was sensory dysfunction demonstrated by decreased sensation to light palpation of the bilateral lower extremities. The diagnosis was neuropathy of the bilateral lower extremities. The examiner opined that it was at least as likely as not that the Veteran's neuropathy of the feet was due to his multiple parachute jumps during service. The jumps caused trauma to the feet. The effect of the condition on the Veteran's daily activity was moderate. In a February 2009 rating action, the RO granted service connection for neuropathy of the right lower extremity (claimed as right foot damage) and assigned a 10 percent disability rating under Diagnostic Code 8520, effective from August 4, 2008. In that same rating action, the RO granted service connection for neuropathy of the left lower extremity (claimed as left foot damage) and assigned a 10 percent disability rating under Diagnostic Code 8520, effective from August 4, 2008. In a private medical statement from N.E., D.O., dated in March 2009, Dr. E. stated that he had treated the Veteran since August 2004. The Veteran suffered from chronic low back pain and radicular neuropathy of the lower extremities. In January 2006, the Veteran underwent a nerve conduction study which revealed an L5-S1 radiculopathy on the right. The Veteran had experienced subsequent episodes of exacerbation of the chronic low back pain. In April 2007, he was treated for a severe exacerbation. According to Dr. E, the Veteran's chronic low back pain and disc disease with radiculopathy appeared to be related to his previous military experience. The Veteran had reported that after jumping from airplanes for a long period of time, his back became more and more painful and he subsequently developed radiculopathy. A VA examination was conducted in January 2011. The examiner stated that he had reviewed the Veteran's claims file. According to the Veteran, any quick movement caused a flare-up of back pain. He denied weakness, swelling, heat, redness, instability, giving way, deformity, weight loss, fever, malaise, numbness, bladder complaints, bowel complaints, and erectile dysfunction. The Veteran indicated that he had worked at a cattle ranch as a bookkeeper which involved no physical labor. He had also worked in sales. The Veteran had been retired for 11 years. Upon physical examination, the Veteran walked unaided with a steady gait. The Veteran's gait and posture were normal. There was no lumbar lordosis or thoracolumbar spine ankylosis. There was also no spasm, atrophy, guarding, pain with motion, tenderness, or weakness. There was lumbar flattening. In regard to range of motion, flexion was to 50 degrees with pain beginning at 30 degrees. There was limited range of motion on repetitive use due to pain to 30 degrees. There was no additional limited range of motion on repetitive use due to fatigue, weakness, or lack of endurance. Extension was to 20 degrees with pain beginning at 10 degrees. There was limited range of motion on repetitive use due to pain to 10 degrees. There was no additional limited range of motion on repetitive use due to fatigue, weakness, or lack of endurance. Lateral flexion was to 10 degrees, bilaterally, and rotation was to 20 degrees, bilaterally. X-rays were taken of the Veteran's lumbosacral spine which were reported to show scoliosis of the upper lumbar and lower thoracic spine. X-rays were also taken of the Veteran's thoracic spine which were interpreted as showing minimal degenerative joint disease of the thoracic spine and mild scoliosis of the thoracic curvature. Following the physical examination and a review of the x-rays, the examiner diagnosed the Veteran with back pain with minimal degenerative joint disease of the thoracic spine; scoliosis of the upper lumbar spine; and mild scoliosis of the thoracic curvature. Due to the Veteran's back disability, he had trouble with driving and getting in and out of the car. The effect of his back disability on occupational activities involved decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and pain. The examiner opined that it was at least as likely as not that the Veteran's back disability was the result of the cumulative effect of greater than 44 parachute jumps from airplanes. In a January 2011 rating action, the RO granted service connection for degenerative joint disease and scoliosis of the thoracolumbar spine. The RO assigned a 20 percent disability rating under Diagnostic Code 5242, effective from August 4, 2008, for the Veteran's service-connected back disability. A VA examination was conducted on July 3, 2013. The examiner noted that he had reviewed the Veteran's claims file. The Veteran stated that he had chronic pain in his back. Upon physical examination, the Veteran was tender to palpation in the entire thoracolumbar spine and in the paraspinous musculature. In regard to range of motion, forward flexion was to 85 degrees; extension was to 10 degrees; right lateral flexion was to 10 degrees; left lateral flexion was to 15 degrees; and lateral rotation was to 10 degrees, bilaterally. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The examiner noted that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine; specifically, less movement than normal, weakened movement, pain on movement, and interference with sitting, standing, and/or weight bearing. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. The sensory examination was normal except that sensation to light touch was absent in the left lower leg/ankle and was decreased in the left foot/toes. Straight leg raising test was negative on the right and positive on the left. The Veteran did not have any radiculopathy of the right lower extremity. He had moderate radiculopathy of the left lower extremity. The nerve involved was the left L5 nerve root. The Veteran did not have any other neurologic abnormalities related to his back such as bowel or bladder problems. The Veteran did not have intervertebral disc syndrome and he did not use any assistive device. According to the examiner, the Veteran's back disability did not impact his ability to work. Following the physical examination, the examiner diagnosed the Veteran with mild degenerative joint disease/scoliosis of the thoracolumbar spine with L3-4 disc space narrowing. In a July 2013 rating action, the RO recharacterized the Veteran's service-connected neuropathy of the left lower extremity (claimed as left foot damage) as neuropathy of the left lower extremity with L5-S1 radiculopathy. The RO granted a 30 percent disability rating under Diagnostic Code 8521, effective from July 3, 2013, for the Veteran's service-connected left lower extremity neuropathy. III. Analysis Disability ratings are determined by the application of VA's SCHEDULE FOR RATING DISABILITIES (Rating Schedule) codified in 38 C.F.R. Part 4 (2012), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with the impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). As the Veteran has taken issue with the initial rating assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson, supra. Thus, the Board must evaluate the relevant evidence since August 4, 2008. The current claim on appeal was received in August 2008. Effective on September 26, 2003, disabilities of the spine have been rated under a General Rating Formula for Diseases and Injuries of the Spine. Under this revised or current criteria for rating spinal disabilities, a 10 percent rating is assigned 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. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 contour such as scoliosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 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. 68 Fed. Reg. 51454, 51456-58 (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). The Board additionally comments that Note (1) accompanying the General Rating Formula for Diseases and Injuries of the Spine, calls for evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) indicates that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5) reflects that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine (effective from September 26, 2003). As for intervertebral disc syndrome under the current criteria, Note (6) calls for evaluation of this disability either under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6) (2012). Under the latter criteria, a Veteran with intervertebral disc syndrome who experiences incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months will receive a 20 percent evaluation; a Veteran who has such episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months will receive a 40 percent evaluation; and a Veteran who has such episodes with a total duration of at least 6 weeks during the past 12 months will garner a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). In addition, the regulation defines an "incapacitating episode" under Diagnostic Code 5243 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012). Traumatic or degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a , Diagnostic Codes 5003, 5010. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In this case, the Board determines that the evidence preponderates against the Veteran's claim for an initial evaluation in excess of 20 percent for his service-connected degenerative joint disease and scoliosis of the thoracolumbar spine. In particular, the Board acknowledges the Veteran's complaints of chronic back pain, which the record clearly documents. However, the Veteran's flexion range of motion (to 50 degrees in the January 2011 VA examination and to 85 degrees in the July 2013 VA examination) does not qualify him for the next higher rating of 40 percent, which necessitates forward flexion of the thoracolumbar spine to 30 degrees or less. The Board recognizes that in the January 2011 VA examination report, the examiner stated that there was limited flexion upon repetitive use due to pain to 30 degrees. However, this appears to be an isolated incident and there is no evidence of sustained forward flexion of the thoracolumbar spine to 30 degrees or less. As noted above, in the Veteran's July 2013 VA examination, forward flexion was to 85 degrees. Moreover, there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. Even when considering DeLuca factors such as painful motion, the Board determines that the Veteran's level of disability more nearly approximates the 20 percent rating criteria contained in Diagnostic Code 5242 (2012) rather than the next higher rating of 40 percent. The Board observes that the combined range of motion of the thoracolumbar spine at the time of the January 2011 VA examination was 130 degrees; at the time of the July 2013 VA examination, it was 140 degrees. In addition, while the Veteran has scoliosis, there is no evidence of record showing that it is due to muscle spasm or guarding. In the January 2011 and July 2013 VA examination reports, the examiner specifically noted that there was no muscle spasm or guarding. The Veteran's gait has been normal. The record additionally does not indicate that the Veteran has favorable or unfavorable ankylosis of the lumbar spine, as would be required for increased ratings of 40 percent to 100 percent under Diagnostic Code 5242. In the January 2011 VA examination report, the examiner specifically indicated that there was no thoracolumbar spine ankylosis. In regard to rating the Veteran's service-connected back disability under the Formula for Incapacitating Episodes, the record bears no indication of incapacitating episodes requiring bed rest prescribed by a physician. In the July 2013 VA examination report, the examiner specifically indicated that the Veteran did not have intervertebral disc syndrome. In regard to objective neurological abnormalities associated with the Veteran's back disability, the Board recognizes that the Veteran experiences pain radiating to his lower extremities. These symptoms have been separately rated. The Veteran has been receiving a 10 percent disability rating for neuropathy of the right lower extremity, effective from August 4, 2008. In addition, he received a 10 percent disability rating for neuropathy of the left lower extremity from August 4, 2008 to July 2, 2013. Moreover, since July 3, 2013, he has been receiving a 30 percent rating for neuropathy of the left lower extremity with L5-S1 radiculopathy. Aside from the radiculopathy of the lower extremities, the medical evidence does not show additional neurologic impairment, including but not limited to bowel and bladder impairment. In summation, the Board finds that the Veteran's service-connected chronic back condition with degenerative joint disease has been manifested by pain and limitation of motion. However, it has not shown to be productive of limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. The Veteran does not have ankylosis in the thoracolumbar spine and at no time has his low back disability been manifested by incapacitating episodes or symptoms necessitating bed rest prescribed by a physician. The medical evidence does not show additional neurological impairment (aside from radiculopathy of the lower extremities), including but not limited to bowel and bladder impairment. In light of the above, the Board concludes that an initial disability rating in excess of 20 percent is not warranted at any time since the initial grant of service connection for degenerative joint disease and scoliosis of the thoracolumbar spine. See Fenderson, supra. Accordingly, the Board finds that there is a preponderance of evidence against the Veteran's claim for an initial rating in excess of 20 percent for his service-connected back disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Extra-schedular Consideration In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a rather recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the symptoms associated with the Veteran's back disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, so the Board finds that the rating criteria reasonably describe his disability. His primary complaint is of chronic pain, and, as explained, the effect of this pain is considered in the rating criteria, especially its effect, as an example, on his range of motion. Thus, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is therefore, adequate. Therefore, referral for consideration of an extraschedular rating is unwarranted. ORDER Entitlement to an initial rating in excess of 20 percent for degenerative joint disease and scoliosis of the thoracolumbar spine is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs