Citation Nr: 1331234 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-31 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating in excess of 20 percent prior to April 5, 2011, and in excess of 40 percent thereafter, for herniated disc at L5-S1 with degenerative disc disease of the lumbar spine. ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from November 1985 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, in which the RO granted service connection for herniated disc at L5-S1 with degenerative disc disease of the lumbar spine and awarded an initial 20 percent disability rating. In an October 2011 statement of the case, the RO granted a higher rating of 40 percent, effective April 5, 2011. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the period prior to April 5, 2011, the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine was manifested by flexion of the thoracolumbar spine to no worse than 60 degrees, even when pain is taken into consideration. 2. From April 5, 2011, the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine has been manifested by flexion of the thoracolumbar spine no worse than 10 degrees, even when pain is taken into consideration. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for herniated disc at L5-S1 with degenerative disc disease of the lumbar spine were not met prior to April 5, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for a rating in excess of 40 percent for herniated disc at L5-S1 with degenerative disc disease of the lumbar spine have not been met from April 5, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. In this respect, through May 2010 and August 2010 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the May 2010 and August 2010 notice letters. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the May 2010 and August 2010 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned May 2010 and August 2010 notice letters. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the May 2010 and August 2010 notice letters. The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant. If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the Veteran's claim for higher initial ratings fall within this pattern. Thus, no additional VCAA notice was required with respect to the claim on appeal. Furthermore, as to the initial rating claims, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman, supra. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. Records from the Veteran's treatment with both private and VA treatment providers have been associated with the claims file. In addition, the Veteran was provided VA examinations in October 2010 and April 2011; reports of those examinations have been associated with the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and reflect that the examiners conducted full examination of the Veteran, including information necessary to apply the pertinent rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his appeal. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his service-connected herniated disc at L5-S1 with degenerative disc disease of the lumbar spine is more disabling than reflected by the 20 percent rating initially assigned prior to April 5, 2011, and the 40 percent rating assigned thereafter. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. The RO has evaluated the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). In the November 2010 decision, the AOJ assigned the Veteran an initial disability rating of 20 percent for herniated disc at L5-S1 with degenerative disc disease of the lumbar spine. In the October 2011 statement of the case, the AOJ increased the rating for the disability to 40 percent, effective April 5, 2011. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. (Although the originating agency has awarded a separate compensable rating for radiculopathy of the right lower extremity as a result of the service-connected arthritis of the lumbar spine, the Veteran has not disagreed with the rating assigned. Consequently, the Board has limited its decision to the rating for the spine itself.) Note (2) 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) 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 normal for that individual will be accepted. Note (4) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under current provisions for rating intervertebral disc syndrome, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, 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 under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). For evaluation of intervertebral disc syndrome, with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assignable. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. Relevant medical evidence consists of VA examinations conducted in October 2010 and April 2011, as well as records of treatment the Veteran has received from VA treatment providers. Report of VA examination conducted in October 2010 reflects that the Veteran reported pain in his lumbar spine that radiated into his right leg and foot. Specifically, the Veteran reported increased pain on bending or lifting, as well as being able to sit or stand for only five to ten minutes at a time. He also stated that his walking was limited to four to six blocks and that he had been unable to run for many years. He denied experiencing any incapacitating episodes in the past twelve months. Physical examination revealed range of motion of the of the lumbar spine of flexion to 60 degrees, with increased pain on repetitive motion but no further limitation of movement. Neurological examination was abnormal on the right side only. The examiner diagnosed the Veteran with degenerative disc disease with right-sided radiculopathy, causing significant limitations to sitting, standing, and walking. Report of VA examination conducted on April 5, 2011, reflects that the Veteran again reported ongoing pain in his lumbar spine. Specifically, the Veteran reported that he experienced ongoing pain in his low back that radiated into his right buttocks. He stated that he had two different types of lumbar brace and wore one or the other for any extended sitting or walking. The Veteran reported that he avoided bending, lifting, or twisting movements. He again denied experiencing any incapacitating episodes over the prior twelve months. Physical examination found the Veteran to have a normal posture, with no swelling, spinal deformity, or tenderness. His range of motion of the lumbar spine was found to be flexion to 10 degrees with painful motion; the Veteran refused to engage in repetitive motion testing secondary to pain. The examiner diagnosed the Veteran with a large disc herniation at L5-S1, producing significant spinal stenosis and nerve root impingement and neuropathy. However, the Veteran also underwent neurological examination in April 2011; at that time, he was found to have radiculopathy only on the right. A separate peripheral neuropathy of the bilateral lower extremities was diagnosed, but that disorder was found to be related not to the back disorder but to the Veteran's history of alcohol abuse. In addition, the Veteran has received ongoing treatment from VA treatment providers for his complaints of pain in his lumbar spine. To that end, records from his ongoing treatment with VA care providers document that he has complained of experiencing ongoing back pain that radiated into his right lower extremity. Radiological evaluation conducted in May 2010 revealed "mild" degenerative disc disease, and an MRI also conducted in May 2010 showed mild to moderate narrowing of the spinal canal as well as a disc extrusion at L5-S1. The Veteran has undergone physical therapy for his low back problems; at a June 2010 treatment visit, he complained of constant pain in his low back radiating into his right leg that increased with sitting, forward bending, and movement after periods of rest. At a neurosurgical consult in August 2010, the Veteran was diagnosed with radiculopathy on the right. Since that date, he has continued to undergo treatment, including physical therapy, for his low back disorder. Regarding the Veteran's service-connected herniated disc at L5-S1 with degenerative disc disease of the lumbar spine for the period prior to April 5, 2011, the Board finds that the disability warranted an initial rating of no more than 20 percent. In this case, the Board finds that, for this period, the Veteran's flexion of the thoracolumbar spine was no worse than 60 degrees, which does not warrant a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. In particular, the Board notes that at the Veteran's October 2010 VA examination, he was noted to have flexion of the thoracolumbar spine to 60 degrees with some pain on repetitive motion. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In this case, the Board has taken into consideration the Veteran's pain on flexion of the lumbar spine at his October 2010 examination and nevertheless finds that the Veteran's forward flexion of the lumbar spine is functionally limited to, at worst, the 60 degrees recorded by the VA examiner, given that no additional limitation was noted on repetitive motion. The Board thus concludes that the range of motion and functional loss displayed by the Veteran at his October 2010 VA examination does not warrant a higher rating for his lumbar spine disability prior to April 5, 2011. In that connection, the Board notes that the Veteran did not display flexion of the thoracolumbar spine of 30 degrees or less at any time prior to April 5, 2011, even when considering pain on motion, to warrant an initial 40 percent rating. Similarly, the Board also notes that there is no evidence that the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine resulted in disability comparable to ankylosis to warrant a 50 or 100 percent disability rating at any point prior to April 5, 2011. The Board acknowledges that the Veteran's VA examination revealed painful motion of the lumbar spine. However, as discussed above, the Board finds that any such pain and its effect on the Veteran's function is properly contemplated in the 20 percent rating initially assigned prior to April 5, 2011. Therefore, the Board does not find that a rating higher than the 20 percent assigned prior to April 5, 2011, based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59, is warranted under the rating criteria. As for the evaluation of the Veteran's service-connected herniated disc at L5-S1 with degenerative disc disease of the lumbar spine for the period since April 5, 2011, the Board finds that the disability does not warrant a rating higher than 40 percent. In that connection, the Board notes that a 40 percent rating is the highest available rating under the General Rating Formula when there remains some effective motion; to warrant a 50 percent rating or above, a diagnosis of ankylosis of the spine is required. As noted above, the Veteran has not been shown at any time to have ankylosis; he is thus not entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine for the period from April 5, 2011. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). The Board has also considered the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine under the rating criteria for intervertebral disc syndrome. However, the evidence does not support a higher rating at any time during the claim period. In that connection, the Board notes that the Veteran reported at his April 2008 hearing that he had not experienced any incapacitating episodes in the year prior to the examination. No periods of incapacitation have been noted throughout the appeal period. As such, the Board finds that consideration of the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine under the rating criteria for intervertebral disc syndrome does not result in a rating higher than the 20 percent initially assigned prior to April 5, 2011, or the 40 percent rating assigned thereafter. In this case, the evidence of record does not reflect neurological findings resulting in incapacitating episodes of at least two weeks' total duration during any 12-month period during the current appeal. In sum, the evidence of record shows that, for the period prior to April 5, 2011, a rating in excess of the 20 percent initially assigned for the Veteran's service-connected herniated disc at L5-S1 with degenerative disc disease of the lumbar spine was not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). Further, for the period from April 5, 2011, a disability rating higher than the 40 percent currently assigned for the Veteran's service-connected herniated disc at L5-S1 with degenerative disc disease of the lumbar spine is not warranted. Id. The Board also finds that there are no other potentially applicable diagnostic codes by which to consider the Veteran's service-connected herniated disc at L5-S1 with degenerative disc disease of the lumbar spine. In this case, while there is radiological evidence of degenerative changes of the lumbosacral spine, the Veteran is being rated for limitation of motion of the lumbosacral spine associated with such degenerative changes. Furthermore, the maximum rating otherwise allowable for arthritis in the absence of limitation of motion is 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). The Board also notes, as discussed above, that there is no evidence that the Veteran's herniated disc at L5-S1 with degenerative disc disease of the lumbar spine has resulted in disability comparable to ankylosis at any time during the appeal period, rendering higher ratings under the current General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5243 (2013) inappropriate. The Board further finds that the Veteran is already in receipt of a separate disability rating for radiculopathy of the right lower extremity. Further, and despite the assignment of a diagnosis of bilateral lower extremity radiculopathy at the April 2011 VA spinal examination, at no time-including at that examination-has any neurological deficit been found in the Veteran's left leg. To the contrary, the neurological examiner in April 2011 specifically found the Veteran to experience radiculopathy in the right lower extremity only, and to have a separate bilateral neuropathy that is unrelated to service or to the Veteran's service-connected back disorder. Thus, the Board finds that no other separate rating for neurological disability is warranted. The Board is cognizant, as discussed above, that the Veteran has complained of painful motion of his lumbar spine. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In that connection, testing of the Veteran's lumbar spine in April 2011 revealed flexion of the lumbar spine to 10 degrees with pain throughout the motion and an inability to engage in repetitive motion testing. In this case, the Board has taken into consideration the Veteran's complaints of pain but finds, in light of the fact that the Veteran is being rated for limitation of motion of the lumbar spine under Diagnostic Code 5243, that any such pain and its effect on the Veteran's range of motion is contemplated in the ratings assigned. Therefore, the Board does not find that ratings higher than those initially and currently assigned for the Veteran's lumbar spine disability based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted under the rating criteria. In exceptional cases, where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to service-connected disabilities. The governing norm in these exceptional cases is a finding that the case 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 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The first step is to determine whether the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If so, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. If the first two steps have been satisfied, the third step is to refer the claim to the under Secretary for Benefits or the Director of the Compensation and Pension Service for determination of whether an extra-schedular rating is warranted. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's lumbar spine disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). In that connection, the Board finds that the symptoms of the Veteran's disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral is not warranted for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 115-16. In arriving at the above-noted determinations, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for ratings higher than those initially assigned, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 20 percent prior to April 5, 2011, for herniated disc at L5-S1 with degenerative disc disease is denied. Entitlement to a rating in excess of 40 percent from April 5, 2011, for herniated disc at L5-S1 with degenerative disc disease is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs