Citation Nr: 1329923 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-10 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for service-connected lumbosacral strain with postoperative stenosis, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to June 1972, March 1981 to March 1984, and April 1984 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in September 2012 and remanded for further development and adjudication. Having been completed, the matter has been returned to the Board and is now ready for appellate disposition. The Board notes that an October 2010 rating decision assigned a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.30 for following surgery for a lumbosacral condition from August 16, 2010, through September 30, 2010. This period of time is not for consideration herein, and the Veteran has not expressed disagreement with the effective dates assigned for this award. The 10 percent rating for the service connected lumbosacral strain was continued from October 1, 2010, following the expiration of the temporary total rating. Additionally, the Board notes that a total rating based on individual unemployability has been granted effective November 2011. The Board also notes that service connection has been established for lumbar radiculopathy of the left lower extremity (rated 10 percent), lumbar radiculopathy of the right lower extremity (rated 10 percent), and a surgical scar on the lumbar spine (assigned a noncompensable rating). These matters are not in appellate status and the following decision of the Board is limited to the question of the proper rating for the Veteran's service-connected lumbosacral strain with postoperative stenosis. FINDING OF FACT During the applicable appeal period, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less, limitation of the combined ranges of motion to 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; incapacitating episodes were not shown. CONCLUSION OF LAW A rating in excess of 10 percent is not warranted for the Veteran's service-connected lumbosacral strain with postoperative stenosis. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § § 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a timely letter was sent in June 2009, prior to the July 2009 rating decision. The Veteran was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. The RO provided the Veteran with additional notice in December 2010. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. VA has obtained pertinent treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations in July 2009, February 2011, and February 2013. All known and available treatment records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Legal Criteria At the outset, the Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Prior to March 2009, the Veteran's service-connected degenerative joint disease of the lower back and right shoulder were rated as one disability under Diagnostic Code 5010 for arthritis. Under Code 5010, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Under Code 5010, the Veteran was awarded 10 percent for the lower back and 10 percent for the right shoulder. However, effective March 31, 2009, the combined 20 percent evaluation was terminated and each disability was evaluated separately, based in part on compensable limitations of motion. Since March 31, 2009 (the date of the appeal), the Veteran's lumbosacral strain with postoperative stenosis has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. Under Code 5237, lumbar strain 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, is assigned a 10 percent rating is for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the 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. 38 C.F.R. § 4.71a. A 20 percent rating is for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. The General Rating Formula For Diseases and Injuries of the Spine does not provide for a 30 percent rating for disability associated with the thoracolumbar spine. A 40 percent is warranted when a back disability is manifested by the following criteria: forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (see also Plate V.) 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): 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 normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Diagnostic Codes 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 Diagnostic Code 5003); 5243 Intervertebral disc syndrome. The Diagnostic Code for intervertebral disc syndrome (5243), permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined, and incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243 The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Factual Background The Veteran underwent a VA examination in July 2009. During the examination, the Veteran reported lumbar degenerative disc disease which has existed for five years. He reported symptoms including stiffness and numbness. He denied loss of bladder or bowel control. He reported constant pain in the lower back that travels down both legs; he described the pain as burning, aching and sharp. He reported pain at a level 9 (on a scale of 1 to 10, 10 being the worst pain). Pain was elicited by physical activity, stress and prolonged standing and could be alleviated by rest. The Veteran stated he was not receiving treatment for this condition and that the condition had not resulted in any incapacitation. He stated that he did not experience any overall functional impairment from his back condition. The Veteran also stated that he was employed as a fitness assistant and was able to shower, vacuum, drive, cook, climb stairs, take out the trash, walk, shop and perform yard work. During the examination, the examiner noted there was no evidence of radiation pain of the thoracolumbar spine on movement. There was no muscle spasm and no tenderness. The examiner noted that there were negative straight leg raising tests on both the right and left. No ankylosis of the lumbar spine was found. Range of motion for the thoracolumber spine was measured: flexion was measured to 90 degrees, with pain at 45 degrees; extension was measured to 30 degrees, with pain at 10 degrees; right lateral flexion was measured to 30 degrees, with pain at 20 degrees; left lateral extension was measured to 30 degrees, with pain at 20 degrees; right rotation was measured to 30 degrees; with pain at 20 degrees; and left rotation was measured to 30 degrees, with pain at 20 degrees. The examiner noted that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incorrdination after repetitive use. Additionally, the examiner noted there were no signs of lumbar intervertebral disc syndrome. X-rays taken in conjunction with the examination showed extensive hypertrophic bridging throughout the lumbar spine associated with a mild scoliosis; most advanced on the right at L1-2 and on the left at L3-4 and L4-5. In October 2009, the Veteran presented to a private treatment provider with back pain and complaints of left leg numbness. X-rays taken at this time showed severe degenerative changes throughout the lumbar spine including anterior an lateral osteophytes. The private provider noted there was no significant instability with flexion or extension. Low back pain, degenerative scoliosis, and left leg S1 sciatica were diagnosed. In November 2009, the Veteran had an initial epidural steroid injection to alleviate left-sided back pain with radiating symptoms into the left lower extremity. A January 2010 magnetic resonance image (MRI) showed degenerative peripheral left-sided foraminal stenosis at L5-S1 from eccentric left lateral spodylosis with distortion of the exiting left L5 root; a small disc protrusion into the foramen at the L5-S1 level adjacent to the root, not markedly distorting the root; slightly more prominent reactive degenerative marrow changes at L2-L3 and L2-L1; degenerative marrow changes at L1-L2, less evident; and slightly more prominent right paracential protrusion and spondylosis at L1-L2 but no high grade stenosis and no effect on the right L1 or L2 root. In February 2010, the Veteran had an additional epidural steroid injection to relieve flaring left-sided back pain with radiating symptoms. On August 16, 2010, the Veteran had surgery to relieve severe foraminal stenosis, to include a laminectomy at the L5 vertebrae and foraminotomy at the L5 and S1 nerve roots on the left side. Following surgery, the Veteran reported improvement in his left leg pain. In November 2011, it was noted the Veteran was doing fairly well post-surgery, but had onset of muscular pain. It was noted the Veteran was active, went to the gym and performed light activity without straining his back. In December 2011, the Veteran presented with worsening back pain, which radiated to his buttocks and left leg. Treatment records noted the Veteran had a normal gait, with full range of motion of the lumbar spine. In February 2011, the Veteran underwent a second VA examination. On examination the Veteran stated that his back had gotten worse and that he had back surgery for pain down his legs. He reported limitation in walking because of left foot pain. Other symptoms noted included stiffness, fatigue, spasms, pareshtesia and numbness, but no decreased motion. He reported weakness of the leg and foot, but denied bowel or bladder problems or erectile dysfunction related to his spine condition. The Veteran described his pain as constant and moderate, located at the small of his back which traveled to his legs. Pain was exacerbated by physical activity, and relieved by rest; at the time of pain he functioned with medication. The Veteran reported flare-ups with functional impairment, limitation of motion of the joint when bending over, and that it was hard to get socks and shoes on. The examiner noted the Veteran had surgery in August 2010. The examiner also noted the Veteran reported 14 days of incapacitating episodes, but could not recall the physician who recommended bed rest. On examination, the examiner noted the Veteran was able to shower, vacuum, drive, cook, climb stairs, dress, take out trash, walk, shop and perform yard work. It was noted that the Veteran occasionally walked with a limp, at times had some problems performing the listed activities, including taking time to get dressed and bend over. The Veteran reported that he was unemployed. The examiner noted the Veteran's posture and gait were normal. On examination, there was no evidence of radiating pain on movement or muscle spasm. Spinal contour was preserved, but tenderness was noted. There was no guarding of movement, and the examination did not reveal any weakness. Muscle tone and musculature were normal. There was negative straight leg raising tests both on the right and left. There was no atrophy present and there was no ankylosis of the thoracolumbar spine. Range of motion studies revealed flexion measured to 65 degrees, with pain at 65 degrees; extension measured to 25 degrees, with pain at 25 degrees; right lateral flexion measured to 25 degrees, with pain at 25 degrees; left lateral flexion measured to 25 degrees, with pain at 25 degrees; right rotation measured to 25 degrees, with pain at 25 degrees; and left rotation measured to 25 degrees, with pain at 25 degrees. Repetitive testing was possible, without additional limitation of motion. It was noted that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Inspection of the spine revealed normal head position with symmetry in appearance. A February 2011 x-ray showed significant degenerative changes with disc space narrowing and osteophyte formation. In January 2012, the Veteran presented with complaints of low back pain that radiated to his legs. A MRI showed disc herniation. Pain was described as moderate to severe. Spinal injections were recommended. Treatment records noted that the Veteran was able to perform activities of daily living, including eating, bathing, toileting, dressing and getting up from the bed or chair. Additionally, it was noted the Veteran exercised six days a week on the treadmill. The provider noted the Veteran ambulated with the assistance of a cane. Decreased range of motion of the lumbar spine was noted, with pain on extension and flexion (degree measurements were not provided). Three steroid injections were given in March 2012. Pursuant to the September 2012 remand, the Veteran was afforded another VA examination in February 2013. Back sprain, scoliosis, back degenerative disc disease, and degenerative joint disease were diagnosed. The Veteran explained that his back pain was 10 out of 10 about 60 percent of the day, and that he has more back pain at night. The Veteran stated that with walking his back pain was 6 out of 10. He additionally reported that his left foot was numb at the bottom and the right foot was fine but started to feel numb in the past year. The Veteran stated that there were no incapacitating episodes and bed rest was never prescribed. He used a cane to walk and stated that it was difficult to wear shoes. The Veteran reported being able to lift approximately 25 pounds occasionally, and standing and walking were limited to 30 minutes before needing to sit down. He reported being able to drive, do house and yard work, and climb a flight of stairs. The Veteran reported flare-ups with bad and cold weather. Range of motions studies measured flexion to 70 degrees, with pain at 70 degrees; extension to 20 degrees, with pain at 20 degrees; right lateral flexion to 20 degrees, with pain at 20 degrees; left lateral flexion measured to 20 degrees, with pain at 20 degrees; right lateral rotation to 20 degrees, with pain at 20 degrees; and left lateral rotation to 20 degrees, with pain at 20 degrees. Repetitive testing revealed no additional limitation of motion. Functional loss, to include less movement than normal, weakened movement, pain on movement, deformity, and interference with sitting, standing, and/or weight bearing were reported. The examiner noted tenderness and guarding of movement which did not result in an abnormal gait or spinal contour. There was no muscle atrophy. Straight leg raising tests of both the right and left were negative. Mild radiculopathy was noted, with moderate numbness of the left extremity. No additional neurological abnormalities were reported. Intervertebral disc syndrome was present, but without any incapacitating episodes. Arthritis was shown by x-ray images. Due to the number of surgeries and physical limitations, the Veteran reported he was unemployed. X-rays taken in conjunction with the February 2013 examination showed moderate left convex scoliosis; no compression deformity was seen; and degenerative changes were present. The x-ray showed narrowing of the L1-L2, L2-L3 and L4-L5 disc spaces. Analysis The Veteran contends that the evaluation currently assigned his lumbar spine disability does not accurately reflect the severity of that disorder. Based on the pertinent medical evidence of record, under the general rating formula for disease and injuries of the spine, Diagnostic Codes 5235-5243, a higher rating in excess of 10 percent is not warranted. At no time during the appeal period has the Veteran's lumbar spine disability been manifested by limitation of flexion to 60 degrees or less, limitation of combined thoracolumbar ranges of motion to 120 degrees or less, or muscle guarding severe enough to result in abnormal gait or spinal contour. The Board acknowledges that on examination in July 2009, full flexion was measured, with pain at 45 degrees. However, the examiner specifically reported that there was no additional functional loss due to pain, fatigue, weakness, lack of endurance or incoordination. In other words, although there was pain, it did no further limit the ability to perform the normal working movements of the low back. See Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011). As such, the criteria for the next higher rating were not met. On examination in February 2011, flexion was measured to 65 degrees with pain and the combined ranges of motion totaled 190 degrees, with pain; and in February 2013, flexion was measured to 70 degrees with pain and the combined ranged of motion totaled 170 degrees with pain. None of the examination reports showed that spinal motion was additionally limited by repetitive use. No evidence of ankylosis of the thoracolumbar spine was shown. Consequently, the next higher (20 percent) rating under these criteria is not warranted. 38 C.F.R. § 4.71a, Codes 5237, 5242. Additionally, while the Veteran reported incapacitating episodes during the February 2011 examination, he seemingly retracted these statements during the February 2013 examination, in which he reported that were no incapacitating episodes and no doctors have prescribed bed rest. Therefore, the Veteran is not entitled to a rating under 38 C.F.R. § 4.71a, Code 5243. The Board acknowledges that the Veteran has continuously been treated for low back pain, and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and the criteria set forth in DeLuca. However, higher compensation is not warranted under these provisions because although the February 2013 examination showed less movement than normal, weakened movement, and pain on movement, they are not of the level which would limit motion to such a degree so as to warrant a rating in excess of the current 10 percent. Additionally, although the Veteran reported pain and flare-ups which caused difficulties in bending and putting on shoes, at no time during the appeal period has he been prohibited by nature of his back disability from completing any activity of daily living. He is still able to dress, drive, care for his hygiene, cook, and complete household chores and yard work. The Board finds that the preponderance of the evidence is against the claim for evaluation in excess of 10 percent for lumbosacral strain with postoperative stenosis. With regard to consideration of any current neurological abnormalities, as noted in the Introduction, service connection has separately been established for lumbar radiculopathy of the left lower extremity, lumbar radiculopathy of the right lower extremity. Additionally, service connection has separately been established for a surgical scar on the lumbar spine. These matters are not in appellate status, and therefore are not considered at this time. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria for the disability at issue. The current applicable Code expressly addresses the Veteran's disability and associated pain, range of motion, and functional limitations. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to an increased disability rating for lumbosacral strain with postoperative stenosis in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Assignment of a staged rating is also not applicable. Fenderson, supra. ORDER Entitlement to a rating in excess of 10 percent for lumbosacral strain with postoperative stenosis is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs