Citation Nr: 1328552 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-01 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service-connected status post spinal fusion, lumbar spine, with radiculopathy, prior to July 27, 2009, and in excess of 40 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity (RLE). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1996 to November 1996 and from January 1997 to December 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, service connection for a low back disability was granted, and a 20 percent rating was assigned effective December 4, 2004. Subsequently, in a November 2009 rating decision, the RO increased the Veteran's low back disability rating to 40 percent, effective July 27, 2009. In a November 2011 rating determination, the RO granted separate service connection for RLE radiculopathy and assigned a 10 percent disability rating, effective July 27, 2009. In March 2013, the claims were remanded for additional development, and they have now been returned for further appellate consideration. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. For the increased rating period prior to July 27, 2009, the Veteran's service-connected lumbar spine disability did not manifest forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome. 2. For the increased rating period from July 27, 2009, the Veteran's service-connected lumbar spine disability did not manifest unfavorable ankylosis of the entire thoracolumbar spine. 3. A preponderance of the evidence weighs against finding that manifestations of the Veteran's RLE radiculopathy amount to any more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the increased rating period prior to July 27, 2009, the Veteran's service-connected lumbar spine disability did not manifest forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5243 (2012). 2. For the increased rating period from July 27, 2009, the Veteran's service-connected lumbar spine disability did not manifest unfavorable ankylosis of the entire thoracolumbar spine. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for a disability evaluation higher than 10 percent for the Veteran's service-connected RLE radiculopathy have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, prior to the initial adjudication of the Veteran's claim for service connection, he was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. Thus, as to the issue of a higher initial disability rating for the now service- connected low back disability, and the separately assigned rating for associated neurological abnormalities, increased ratings are "downstream" issues. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Sutton v. Nicholson, 20 Vet. App. 419 (2006) (citing Dingess). With respect to the Dingess requirements, the Veteran was provided with these requirements in the September 2006 VCAA letter mentioned above. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. Moreover, Social Security Administration (SSA) records have been obtained. He has also been afforded several VA examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole- recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the US Court of Appeals for Veterans Claims as "staged" ratings. Id. at 126. Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012). Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include lumbosacral strain (DC 5237). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2012). Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate DC. Note (2) (See also Plate V) provides 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 (3) to the rating formula provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is considered normal for that individual will be accepted. Note (4) instructs to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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 (2012). The DCs for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 2 months. 38 C.F.R. § 4.71a (2012). DC 5010 is for arthritis due to trauma, substantiated by X- ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010 (2012). DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003 (2012). (Normal ranges of motion associated with the lumbar spine are flexion forward to 95 degrees, extension backwards to 35 degrees, lateral flexion to 40 degrees, and rotation to 35 degrees. VA Physician's Guide to Disability Evaluation Examinations, § 2.23 on p. 2-10 (Paul M. Selfon, M.D., Editor-in-Chief.) Lumbar Spine Increased Disability Rating Background and Analysis The Veteran is in receipt of a 20 percent rating for service-connected lumbar spine disability for the increased rating period prior to July 27, 2009, and a rating of 40 percent thereafter, under the provisions of 38 C.F.R. § 4.71a, DC 5241. Increased Rating Period prior to July 27, 2009 After a review of all the evidence in this Veteran's case, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 20 percent for service-connected lumbar spine disability for the period prior to July 27, 2009. Review of the record reflects that the Veteran had back problems during service and had a spinal fusion performed in February 2004. Upon VA examination in March 2005, range of motion testing of the lumbar spine showed forward flexion from 0 to 85 degrees, extension from 0 to 10 degrees, left lateral flexion from 0 to 20 degrees, and right lateral flexion from 0 to 25 degrees. Rotation, bilaterally, was from 0 to 10 degrees. Neurological testing was normal. The examiner assessed an additional loss of 20 degrees of motion during flare-ups due to pain. In an August 2005 rating decision, a 20 percent rating was assigned for status post spinal fusion. Private and VA records show treatment for low back complaints from 2005 through 2007. Pertinent to the current period in question are results of magnetic resonance imaging (MRI) testing in September 2005. At that time, characteristic postoperative changes of the posterior fixation and interbody fusion at L5-S1 were noted. There was extensive postoperative fibrosis and perineural fibrosis without evidence of disc herniation and very minimal disc bulges at L3-4 and L4-5. VA records show that the Veteran's low back complaints had improved in March 2006 with medication and physical therapy. However, in August 2006, he said that he continued to have some pain on a daily basis. VA electromyogram (EMG) testing in March 2007 showed no evidence of lumbar radiculopathy. In August 2007, the Veteran reported back pain with some radiculopathy into the RLE. SSA records reflect that the Veteran was awarded benefits based primarily on his back problems. The disability began in December 2004. When examined by VA on July 27, 2009, there was tenderness from L1 to L5 midline. There was no paraspinal muscle spasm noted, but there was mild tenderness to the lumbar paraspinal muscles. There was no listing, or spasm. He also had mild to moderate incoordination with range of motion. Forward flexion of the lumbar spine was from 0 to 30 degrees, extension from 0 to 12 degrees, lateral flexion bilaterally from 0 to 10 degrees, and rotation bilaterally from 0 to 10 degrees. There was no increased in pain with initial range of motion. Repetitive testing was not performed due to increased pain. The Veteran appeared to have moderate fatigue, weakness, and lack of endurance with the initial range of motion of the lumbar spine. The Veteran listed to the left lower extremity when standing. In a November 2009 rating decision, the RO assigned a higher disability evaluation of 40 percent for the service- connected lumbar spine disorder, effective from the date of VA exam on July 27, 2009. Here, the Board finds that, based on measures of range of motion of the thoracolumbar spine, the Veteran's lumbar spine disability does not meet or more nearly approximate the criteria for an increased rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. For a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. As noted above, the 2005 examination reflects that the Veteran had forward flexion to 85 degrees. On repetitive use, the VA examiner opined that there was 20 degrees of additional limitation of motion due to pain. There was also no noted additional limitation on motion with repetitive use due to weakness, impaired endurance, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca at 202. Subsequently dated records do not show an increase in limitation of range of motion and additional subjective complaints until exam by VA in July 2009. Thus, for the period prior to the July 27, 2009, examination, a rating in excess of 20 percent for status post fusion of the lumbar spine is not warranted. The Board has also considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. In fact, consideration of these factors resulted in the initial assignment of 20 percent in that there was significant limitation of range of motion of the lumbar spine for the period in question. Even with consideration of additional limitation of motion due to pain (20 degrees), the range of motion does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, which is required for the 40 percent rating. The specific clinical measures of ranges of motion, including the VA examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain. For these reasons, the Board finds that, for the increased rating prior to July 27, 2009, the criteria for an initial disability rating in excess of 20 percent for lumbar spine disability have not been met. 38 C.F.R. §§ 4.3, 4.7(2012). Increased Rating Period from July 27, 2009 After a review of all the evidence in this Veteran's case, the Board also finds that a preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 40 percent for service-connected lumbar spine disability for the period from July 27, 2009. For the increased rating period from July 27, 2009, the Veteran's service-connected lumbar spine disability did not manifest unfavorable ankylosis of the entire thoracolumbar spine. VA records reflect that in 2010 the Veteran's back complaints included tingling and numbness in the lower extremities. In September 2010, testing showed evidence of a right L5-S1 radiculopathy. There was no diffuse sensorimotor peripheral neuropathy in either extremity. (Service connection was established separately for this radiculopathy in a November 2011 rating decision. The claim for an increased rating is addressed later in this decision.) When examined by VA in July 2012, the Veteran reported daily pain with occasional radiation in the RLE. Range of motion testing showed forward flexion of the lumbar spine to 65 degrees with extension to 30 degrees. Right and left lateral flexion were to 30 degrees, and right lateral rotation was to 30 degrees, while left lateral rotation was to 25 degrees. The Veteran was able to perform repetitive use testing with three repetitions. There was objective evidence of pain at the end of flexion and extension ranges of motion. Symptoms associated with the back condition included pain and restricted movement. There was no guarding or muscle spasm of the thoracolumbar spine. Based upon these findings, and the Veteran's reported symptoms and limitations of motion and function, the Board finds the assignment of a rating in excess of 40 percent for lumbar spine disability is not warranted for the period from July 27, 2009, as the requirement of unfavorable ankylosis of the entire thoracolumbar spine has not been met at any time during the increased rating period from that date. 38 C.F.R. § 4.71a, DC 5237 (2012). Overall flexion had improved since exam in 2007, but it is noted that the Veteran had functional loss and/or impairment due to pain to include pain on movement and restricted movement which is further addressed below. It is clear that the symptomatology (unfavorable ankylosis of the entire thoracolumbar spine) that would warrant a rating in excess of 40 percent is not shown. Moreover, the evidence did not show that the Veteran has incapacitating episodes requiring bedrest prescribed by a physician and treated by a physician. In further discussion as to functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint, the Board notes the Veteran's reported daily pain with some restriction of impairment of function to include restriction of movement. However, as noted above, his flexion was noted to have improved in 2012 when compared to previous evaluations, and his radiating pain is compensated in a separate disability rating. This is consistent with the express contemplation of range of motion with pain, whether or not it radiates, and stiffness and aching in the spine, in the General Rating Formula. See 38 C.F.R. § 4.71a, DC 5241 (2012). The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain. For these reasons, the Board finds that the weight of the evidence is against a finding of an increased rating in excess of 40 percent for lumbar spine disability for the period from July 27l, 2009. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7 (2012). An initial rating in excess of 10 percent for peripheral neuropathy of the RLE Under 38 C.F.R. § 4.71a, DC 5241, Note 1, any associated objective neurological abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under the appropriate DC. At the July 2009 exam, there was report of tingling and numbness in the lower extremities. The Veteran's leg strength was 5+ bilaterally. There was no evidence of muscle atrophy or gait abnormality. EMG and nerve conduction studies showed evidence of a right L5-S1 radiculopathy but with no diffuse sensorimotor peripheral neuropathy in either lower extremity. Based on these findings, a separate 10 percent rating was granted for peripheral radiculopathy of the RLE upon rating decision in November 2011. Subsequently added to the record was a previously dated private nerve conduction study and EMG test report from June 2010. At that time, nerve studies showed normal terminal and F-wave latencies of the bilateral peroneal nerves and posterior tibial nerves. Following EMG testing which showed positive sharp waves in the right L5-S1 paraspinal muscles, the final diagnosis was evidence of a right L5-S1 radiculopathy, but no electrophysiological evidence of a diffuse sensorimotor peripheral neuropathy in either extremity. Subsequently dated treatment records reflect ongoing complaints of associated pain, tingling, and numbness in the lower extremities, but in December 2012, it was noted that his lumbar spine condition was stable. In consideration of the above, the Board finds that an initial rating in excess of 10 percent is also not warranted for RLE. Although the Board has considered the argument that a rating increase is warranted, the overall disability picture does not more closely approximate the rating criteria for more than mild incomplete paralysis of the sciatic nerve. As noted above, EMG and nerve studies result show only mild residuals. There is no guarding, atrophy, or muscle atrophy indicated, and there is no electrophysiological evidence of a diffuse sensorimotor peripheral neuropathy in the lower extremities. As such, the Veteran is entitled to a separate rating of 10 percent, but no higher, throughout the rating period on appeal, for radiculopathy of the RLE due to his service- connected lumbar spine disability. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for lumbar spine disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected lumbar spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The service-connected lumbar spine disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca), and incapacitating episodes. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's service-connected lumbar spine disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial rating in excess of 20 percent for service-connected status post spinal fusion, lumbar spine, with radiculopathy, prior to July 27, 2009, and in excess of 40 percent thereafter, is denied An initial evaluation higher than 10 percent for service- connected RLE radiculopathy is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs