Citation Nr: 1328390 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-26 527 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 40 percent for cervical myositis with discogenic disease. 2. Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served with the Army National Guard and had active duty service from May 2000 to January 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the San Juan RO. In February 2012 and February 2013, the case was remanded for additional development. FINDINGS OF FACT 1. The Veteran's cervical spine disability is manifested by pain, painful motion, and limitation of motion, and is productive of fewer than 6 weeks of incapacitating episodes during the past 12 month period; unfavorable ankylosis of the entire spine is not shown. 2. The Veteran's lumbar spine disability is manifested by pain, painful motion, and limitation of motion, and is productive of fewer than 6 weeks of incapacitating episodes during the past 12 month period; unfavorable ankylosis of the entire thoracolumbar spine is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for cervical myositis with discogenic disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5243 (2012). 2. The criteria for a rating in excess of 40 percent for DDD of the lumbar spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012), and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice also should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). A January 2008 letter provided the Veteran with pre-decisional notice reflects compliance with the pertinent statutory and regulatory provisions and case law by informing him of information and evidence VA will seek to provide and information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. Although this letter erroneously provided erroneous notice of evidence needed to substantiate a claim for service connection, the record also shows he was given notice of what evidence was needed to establish a higher rating. This is evidenced by a portion of a VCAA letter that contained this notice, which was returned by the Veteran to the RO in March 2008 with a handwritten notation on the bottom of the page. Therefore, he was provided notice compliance with pertinent laws and regulations and case law. An additional letter was sent to the Veteran in March 2009. VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). VA has obtained all pertinent/identified records that could be obtained and the Veteran's VA and service treatment records have been secured. The Veteran was also afforded VA examinations that are deemed adequate and contain sufficient information to rate the disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the record shows compliance with directives of the Board's February 2012 and February 2013 remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claims. Legal Criteria and Analysis In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, a disability may have undergone varying and distinct levels of severity throughout the entire time period that the increased-rating claim has been pending. In those instances, it is appropriate to "stage" the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (employing this practice irrespective of whether the rating being contested in an established or initial rating). 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In rating musculoskeletal disabilities, it is appropriate to consider additional limitation of function due to factors such as pain, weakness, incoordination and fatigability of the joint. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 CF.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating § 4.59 is for consideration even when the Veteran does not have arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38- 43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Service connection for the Veteran's cervical spine disability was established in a September 2001 rating decision and an initial 40 percent rating was assigned at that time. Service connection for a lumbar disability was granted in a July 2003 rating decision and an initial 20 percent rating was assigned. In the March 2008 rating decision currently on appeal, the RO increased the rating for the lumbar disability to 40 percent, effective December 18, 2007, which is the date the claim for a higher rating was received. However, the Veteran was not satisfied with the rating and appealed the matter for an even higher rating. The criteria for rating disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine. This formula provides a 40 percent rating for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Under the criteria governing disabilities of the lumbar spine, intervertebral disc syndrome (IVDS) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides a 40 percent rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2012). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1) (2012). A. Cervical Spine The Veteran contends his cervical spine disability should be assigned a rating in excess of the current 40 percent, which would require either unfavorable ankylosis of the entire spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 month period. At no time during the appeal was the Veteran's entire spine shown to be manifested by unfavorable ankylosis. Ankylosis is defined as Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). 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; atlantoxial 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. See Note 5, General rating Formula for Diseases and Injuries of the Spine. Private treatment records associated with the file dated in 2007 and 2008 did not contain any specific findings on range of motion studies, but the Veteran was noted to have pain and limitation in neck flexion, extension, and rotation. A January 2008 VA treatment record located in the Virtual VA file showed the Veteran had 10 degrees of flexion and extension in the cervical spine; bilateral rotation and lateral flexion was severely limited. On February 2008 VA examination, active flexion of the cervical spine was from 0 to 6 degrees with pain beginning at 5 degrees; passive flexion was from 0 to 7 degrees with painful motion beginning at 5 degrees. On repetitive use the range of motion was limited to 5 degrees actively with painful motion beginning at 3 degrees and to 6 degrees passively with pain beginning at 3 degrees. Extension was from 0 to 5 degrees actively and from 0 to 6 degrees passively with painful motion beginning at 3 degrees. On repetitive use extension was limited to 4 degrees due to pain. Bilateral lateral flexion was from 0 to 5 degrees actively and from 0 to 6 degrees passively with painful motion beginning at 3 degrees actively and passively. There was pain with repetitive use and motion limited to 4 degrees due to pain. Bilateral lateral rotation was from 0 to 6 degrees actively and 0 to 7 degrees passively with painful motion beginning at 4 degrees actively and passively. There was pain with repetitive use and motion limited to 5 degrees due to pain. There was no evidence of ankylosis in either the cervical or thoracic segments of the spine. Additional findings of the cervical spine were bilateral spasms, guarding, pain with motion, tenderness, and weakness bilaterally. The VA examiner indicated the Veteran's cervical spine pain significantly affected his usual occupation due to decreased mobility, problems with lifting and carrying, decreased strength in upper extremities and pain, and resulted in the assignment of different duties. The effects on usual daily activities were severe with shopping, exercise, sports, and recreation, and moderate with chores, traveling, feeding, bathing, dressing, toileting, and grooming. An August 2009 VA treatment record located in the Virtual VA record showed the Veteran reported an exacerbation of pain that started 2 weeks earlier. The neck motion was decreased secondary to pain; specific findings were not reported. He was neurologically intact. Subsequent findings do not reflect or approximate greater limitation so as to result in unfavorable ankylosis of the entire spine. On September 2009 VA examination, the findings as to spasms, pain with motion, tenderness, and weakness remained unchanged. Active flexion, extension, and bilateral flexion were from 0 to 5 degrees, and bilateral lateral rotation was from 0 to 6 degrees. On repetitive motion there was additional limitation of motion due to pain that reduced extension and bilateral lateral flexion to 4 degrees; there was no change in flexion or bilateral lateral rotation. There was no ankylosis of the cervical or thoracolumbar spine. The effect on the usual daily activities were severe with shopping, exercise, and sports; moderate with chores, recreation, traveling, bathing, dressing, toileting, and grooming; and mild with feeding. A few days later, an October 2009 VA psychiatric treatment record located in the Veteran's Virtual VA file indicated the Veteran reported a relapse of neck pain. The physician noted there was a lateral deviation of the neck. The Board finds on February 2012 VA examination, the range of motion studies were improved since his prior examination with findings of forward flexion to 30 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 60 degrees. However, pain began at 5 degrees on motion with forward flexion, extension, and bilateral lateral flexion; pain began at 10 degrees on bilateral rotation. Repetitive use testing revealed no changes with any ranges of motion tested. In addition to painful motion, he was also found to have tenderness of the cervical spine. Motor, reflex, and sensory testing in the upper extremities was normal. The Veteran reported having a history of intermittent pain in the cervical spine area with limitation of motion due to pain. Flare-ups occurred and the Veteran reported during these episodes he felt "unable to move [his] neck". Based on the findings of record, the Veteran was not shown to have unfavorable ankylosis of the entire spine at any time. The Veteran was always shown to have at least some mobility in his cervical spine and there is certainly no evidence the entire spine is fixed in flexion or extension and produced any of the additional problems noted in Note 5. Consequently, the criteria for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine are not met. The Board also considered the disability under the Formula for rating IVDS Based on Incapacitating Episodes but found no evidence that the cervical spine disability produced incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A statement from the Veteran received in March 2008 indicated he missed more than 8 weeks of work due to his disability and his February 2009 notice of disagreement (NOD) stated he reported more than 4 episodes of incapacitating episodes during the past year with a total of 9 episodes; however, he is not shown to have the requisite number of weeks of incapacitating episodes to permit assignment of a higher rating. On February 2008 VA examination, the Veteran reported having had 4 weeks of incapacitating episodes during the past year and that each episode lasted 1 week. On September 2009 VA examination, the Veteran denied having any incapacitating episodes associated with his spine disease. A March 2013 addendum to the February 2012 VA examination stated a review of the Veteran's records contained no evidence of incapacitating episode of the cervical spine in the past year. Treatment records showed the Veteran had strong cervical and lumbar pain in January 2007; rest was recommended for 1 week. In May 2007, the Veteran was seen for strong cervical pain of 2 week duration; the physician indicated rest for 2 weeks. In September 2007, the Veteran complained of strong neck, back, and waist pain for 2 weeks; rest for 1 week was indicated. A February 2008 record noted the Veteran's cervical spine and lumbar spine disabilities and indicated rest; no specific time period was given. The Veteran submitted a physician's note that showed he had been evaluated in October 2006 for an exacerbation of chronic neck and low back pain. He was treated with medication and muscle relaxants; rest was also recommended. An October 2007 physician's note indicated the Veteran had cervical and lumbosacral spine pain with muscle spasms; rest was prescribed for 5 days. A March 2008 physician's note indicated the Veteran was examined and found to have severe cervical pain and spasms; analgesics and rest were recommended. While the Veteran is shown to have had some incapacitating episodes due to his cervical spine disability, some of the records show the Veteran simultaneously had cervical spine and low back pain that led to bed rest and on more than one occasion bed rest was recommended but not prescribed. Nevertheless, even if the Board considered all of these episodes in which rest was indicated as evidence of incapacitating episodes and included episodes in which rest was indicated for both cervical spine and lumbar spine pain, the total duration of incapacitation for a 12 month period was never greater than 5 weeks. Specifically, in 2007, he had approximately 5 weeks of bed rest, which falls short of the 6 weeks required for a higher rating. There was evidence of only one incapacitating episode in 2008 and as recently as March 2013, a VA physician who reviewed the Veteran's records found no evidence of incapacitating episodes during the past 12 months. As the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's cervical spine disability, the benefit-of-the-doubt doctrine does not apply and the claim is denied. B. Lumbar Spine The Veteran contends his lumbar spine disability should be assigned a rating in excess of the current 40 percent, which would require either unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 month period. At no time during the appeal was the Veteran's entire spine thoracolumbar spine shown to be manifested by unfavorable ankylosis. On February 2008 VA examination, the thoracolumbar spine demonstrated active flexion from 0 to 10 degrees and passive flexion from 0 to 12 degrees with painful motion beginning at 8 degrees on motion. On repetitive testing, flexion was limited to 8 degrees due to pain. Extension was from 0 to 8 degrees and passive extension was from 0 to 10 degrees with painful motion beginning at 6 degrees on motion. On repetitive testing, extension was limited to 6 degrees due to pain. Bilateral lateral flexion and bilateral rotation were from 0 to 8 degrees actively and from 0 to 10 degrees passively with painful motion beginning at 6 degrees on motion. On repetitive testing, bilateral lateral flexion and bilateral rotation were from 0 to 6 degrees. There was no evidence of thoracolumbar ankylosis. In addition to pain, the Veteran experienced decreased motion, stiffness, and spasms. His pain was moderate in severity but constant and daily. Flare-ups were severe and they occurred every 2 to 3 weeks and last for hours, and he was limited to walking 1/4 mile. There was no evidence of ankylosis in the thoracic spine. The Veteran reported that he lost 4 weeks from his work as a police officer during the past 12 months due to his cervical and lumbar spine disabilities and that he was assigned different duties due to his disabilities. The effects the lumbar disability had on daily activities were severe for shopping, exercise, and recreation, and moderate for grooming, toileting, dressing, bathing, feeding, travel, and chores. On September 2009 VA examination, the Veteran complained of severe pain that was constant and daily. He reported being unable to walk more than a few yards. He had severe flare- ups that were weekly and lasted for hours, but he did not have incapacitating episodes. There was no evidence of ankylosis and but there were objective findings of bilateral spasms, pain with motion, tenderness, and weakness. Lumbar flexion, bilateral lateral flexion and right lateral rotation were from 0 to 8 degrees, extension was from 0 to 5 degrees, and left lateral rotation was from 0 to 10 degrees. On repetitive testing there was additional limitation of motion due to pain with flexion, bilateral lateral flexion and right lateral rotation from 0 to 6 degrees, extension from 0 to 4 degrees, and left lateral rotation from 0 to 7 degrees. On February 2012 VA examination, the Veteran reported having pain flare-ups in which he felt unable to walk. On range of lumbar motion studies, forward flexion was to 35 degrees with painful motion beginning at 10 degrees. Extension was to 15 degrees with painful motion beginning at 10 degrees. Bilateral lateral flexion was to 15 degrees with painful motion beginning at 10 degrees. Bilateral rotation was to 20 degrees with painful motion beginning at 15 degrees. On repetitive motion testing, there were no changes in the ranges of motion in any of the planes tested. The other finding noted was pain at the lumbar paravertebral muscles upon palpation without increased tone (spasm). Based on the findings of record, the Veteran was not shown to have unfavorable ankylosis of the thoracolumbar spine at any time. The Veteran was always shown to have at least some mobility in his lumbar spine and there was certainly no evidence the entire thoracolumbar spine was fixed in flexion or extension and produced any of the additional problems noted in Note 5. Consequently, the criteria for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine are not met. The Board also considered the disability under the Formula for rating IVDS Based on Incapacitating Episodes but found no evidence that the lumbar spine disability produced incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A statement from the Veteran received in March 2008 indicated he missed more than 8 weeks of work due to his disability and his February 2009 notice of disagreement (NOD) stated he reported more than 4 episodes of incapacitating episodes during the past year with a total of 9 episodes; however, the disability is not shown to meet or approximate the criteria for a higher rating. Treatment records showed the Veteran had strong cervical and lumbar pain in January 2007; rest was recommended for 1 week. In March 2007, he had severe pain in the waist/lumbar area for 1 week; the physician indicated rest for 1 week. In July 2007 he had strong lumbar pain; rest was indicated for 1 week. In September 2007, the Veteran complained of strong neck, back, and waist pain for 2 weeks; rest for 1 week was indicated. The Veteran submitted a physician's note that showed he had been evaluated in October 2006 for an exacerbation of chronic neck and low back pain. He was treated with medication and muscle relaxants; rest was also recommended. A March 2007 physician's note indicated the Veteran had low back pain and muscle spasms; rest was prescribed for 2 to 3 days. An October 2007 physician's note indicated the Veteran had cervical and lumbosacral spine pain with muscle spasms; rest was prescribed for 5 days. A February 2008 record noted the Veteran's cervical spine and lumbar spine disabilities but did not specifically state which was being evaluated. Rest was indicated but no time period was offered. While the Veteran is shown to have had some incapacitating episodes due to his thoracolumbar spine disability, a preponderance of the evidence is against finding the criteria are met for a higher rating based on incapacitating episodes. Some of the records show the Veteran simultaneously had cervical spine and low back pain that led to bed rest and on more than one occasion bed rest was recommended but not prescribed. Even if the Board considered all of these episodes in which rest was indicated as evidence of incapacitating episodes and included episodes in which rest was indicated for both cervical spine and lumbar spine pain, the total duration of incapacitation for a 12 month period was approximately 5 weeks in 2007, which falls short of the 6 weeks required for a higher rating. There is no evidence of incapacitating episodes since 2008 and even as recently as March 2013, a VA physician who reviewed the Veteran's records found no evidence of incapacitating episodes during the past 12 months. As the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's lumbar spine disability, the benefit-of-the-doubt doctrine does not apply and the claim is denied. C. Neurological Manifestations in Upper and Lower extremities. Under the General Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are rated separately under appropriate diagnostic code. Because the Veteran has had complaints that appeared to be neurologic in nature, the Board considered whether a separate rating may be assigned; however, based on a review of the record, a preponderance of the evidence is against finding the cervical or lumbar spine disability had objective neurologic abnormalities. Treatment records show the Veteran complained of bilateral leg pain in July 2007 and it was noted he had sensory motor deficits in the lower extremities in September 2007. The Veteran's complaints of right upper extremity pain, numbness, tingling were noted on February 2008 VA examination. The examiner noted the Veteran denied having bladder or urinary problems and none were found on examination. The motor examination revealed active movement against some resistance in the upper extremities, there was normal sensation to pinprick and light touch in left extremity, sensation to pinprick and light touch in the left upper extremity was absent in the left upper extremity, and there were normal reflexes bilaterally. No dermatome area could be identified regarding the peripheral nerve with sensory branches fitting the pattern of sensory loss. Motor, sensory, and reflex testing of the lower extremities was identical to the upper extremities with the exception of left knee jerk, which was hypoactive. On September 2009 VA examination, the Veteran reported having bilateral hand numbness and muscle weakness. There were still no urinary or bowel problems. There was no change in the motor or reflex testing, but the sensation testing revealed impaired sensation to pinprick and light touch in the upper and lower extremities. The physician opined the claimed bilateral upper and lower extremity conditions were not caused or the result of the service- connected disability because there was no evidence of clinical cervical or lumbar radiculopathy on examination. On February 2012 VA examination, muscle, reflex, and sensory testing in the bilateral upper and lower extremities was normal. The examiner remarked there were no neurologic deficits found on the examination. Given that there were no neurologic deficits on the February 2012 VA examination, the September VA examiner found no cervical or lumbar radiculopathy, and there is a competent, credible, and probative opinion against a finding of neurologic manifestations of the cervical and lumbar spine disabilities, the Board finds there is no basis for assigning separate ratings. D. Extraschedular The Board has considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three- step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Referral for extraschedular consideration is not warranted. The cervical spine and lumbar spine disabilities are manifested by symptoms and functional impairment expressly addressed by the rating criteria, including pain limited motion, and painful motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; see also 38 C.F.R. §§ 4.40 , 4.45, and 4.59. The Veteran does not have symptoms associated with either spine disability that has been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's cervical and lumbar spine disabilities and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore referral for extraschedular consideration is not warranted. See id. ORDER A rating in excess of 40 percent for cervical myositis with discogenic disease is denied. A rating in excess of 40 percent for DDD of the lumbar spine is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs