Citation Nr: 1333430 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-18 638A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation (rating) in excess of 10 percent for status-post lumbar strain and degenerative joint disease (DJD) of the lumbar spine. 2. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1981 to December 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board finds that the August 2009 representative's statement constitutes a timely substantive appeal with regard to the lumbar spine increased rating claim and this issue is in appellate status. See Percy v. Shinseki, 23 Vet. App. 37 (2009).. The issue of entitlement to an initial compensable rating for hypertension is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the service-connected DJD of the lumbar spine has been manifested by pain, with limitation of forward flexion of the lumbar spine to greater than 60 degrees, a combined range of motion of the lumbar spine of greater than 120 degrees, and without muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour, and no incapacitating episodes due to the disc disease. 2. For the entire initial rating period on appeal, a separate and distinct neurological disability due to the lumbar spine DJD is not shown. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for the assignment of an initial disability evaluation in excess of 10 percent for the service-connected status-post lumbar strain and DJD of the lumbar spine have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a letter dated in July 2007. The VCAA letter informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. The letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the July 2007 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. The Veteran's appeal for a higher initial rating for the lumbar spine disability arises from his disagreement with the initial evaluation following the grant of service connection. VCAA notice regarding the service connection claim was furnished to the Veteran in July 2007. Courts have held that, once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the present case, service treatment records, private treatment records, VA treatment records, and the Veteran's statements have been obtained and associated with the claims file. Further, VA provided an examination in April 2009 to obtain medical evidence as to the current severity of the lumbar spine disability. The examination is adequate because the examination was performed by medical professional and was based on a solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner considered the Veteran's reported medical history and lay statements concerning the claimed disorder. The VA examiner described the symptoms and manifestations due to the lumbar spine disability, including range of motion of the thoracolumbar spine. The VA examiner reported whether the disability caused functional impairment or functional limitation including additional limitation of range of motion. The examination report is accurate and fully descriptive. Neither the Veteran nor his representative has challenged the adequacy of the examination obtained for this issue. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims and VA met its duty to assist the Veteran. Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The U.S. Court of Appeals for Veterans Claims (Court) has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting a distinction between claims stemming from an original rating versus increased rating). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. 308-09; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The Court has also noted that, when rating spine disabilities, the Board must discuss any additional limitation of motion that a veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); VAOPGCPREC 9-98. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). The Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under Diagnostic Code 5003, a maximum rating of 10 percent is provided for degenerative arthritis of a major joint or group of minor joints that is established by x-ray findings with pain and noncompensable limitation of motion; therefore, in this case, as the Veteran's lumbar spine disability (arthritis) is already rated 10 percent disabling, a higher rating is not possible under Diagnostic Code 5003. Higher ratings are only possible under specific codes that rate on limitation of motion. Diagnostic Code 5003 directs that higher ratings based on limitation of motion are possible under specific diagnostic codes that rate limitation of motion of the joint involved, and that any ratings assigned under these diagnostic codes on the basis of limitation of motion cannot be combined with the 10 percent rating for arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine are rated under the following General Rating Formula for Diseases and Injuries of the Spine 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: A 10 percent disability evaluation is assigned when there is 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; 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 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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 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. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease 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 under 38 C.F.R. § 4.25. Under Diagnostic Code 5243, a 10 percent rating is warranted for when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Lumbar Spine Rating Analysis The Veteran contends that he is entitled to a higher initial rating than 10 percent for his lumbar spine disability. At the July 2011 VA examination, the Veteran reported stiffness, pain, decrease range of motion, and weakness of the lower extremities. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for the service-connected lumbar spine disability for the entire appeal period. The evidence shows that, for the entire initial rating period on appeal, the service-connected lumbar spine disability has been manifested by stiffness, pain, and decreased range of motion, and this symptomatology is contemplated in the 10 percent disability rating under either Diagnostic Code 5003 or the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a. Review of the evidence of record includes an April 2009 VA examination in where the Veteran reported suffering from low back pain with stiffness, decreased range of motion, weakness of the lower extremities, numbness, and increased pain with prolonged sitting. Physical examination revealed tenderness along the lumbar spine and along the right lumbar paraspinal musculature. Range of motion was noted as flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and rotation to 45 degrees with pain. Following repetitive motion, there was an increase in pain but no additional loss of motion. Sensory, motor, and reflex exam was normal. The examiner indicated that there was no evidence of radiculopathy. The VA examiner further noted that there had been no recommended bedrest or incapacitating episodes over the past 12 months and no impediment to his daily activities. The Board has considered the Veteran's reports of pain with motion and increased pain with prolonged sitting; however, the VA examination report indicated that there was no evidence of additional limitation of motion with repetition and there was no evidence of any additional limitation of motion due to pain, weakness, lack of endurance, or incoordination. The Board has fully considered and weighed the Veteran's reports of back pain with prolonged sitting, and applied the rating principles at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, but finds that, even fully considering such factors, the pain does not limit motion to the higher 20 percent rating under Diagnostic Code 5237 (lumbosacral strain) or Diagnostic Code 5242 (DJD of the spine). The weight of the competent and credible evidence establishes that any additional limitations of motion of the lumbar spine due to pain have been considered. It is noted that a 10 percent rating is the maximum rating under Diagnostic Code 5003. For this reason, there is no basis for the assignment of higher rating than 10 percent on the basis of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca at 206-07. Further, during the April 2009 VA examination, the Veteran denied having any incapacitating episodes due to the lumbar spine disability. The VA examination report indicates that upon examination, coordination was normal and there was normal function and motor strength in both lower extremities. There were no gross deformity, swelling, or muscle atrophy. There was also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. As such, the criteria for the assignment of a 20 percent disability rating have not been met or more nearly approximated based upon the established criteria for range of motion of the lumbar spine for the initial period of the appeal. 38 C.F.R. §§ 4.3, 4.7. In sum, the evidence does not show that any of the 20 percent rating criteria are met or more nearly approximated, namely, 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; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes. As such, the criteria for the assignment of a 20 percent disability rating have not been met or more nearly approximated based upon the established criteria for range of motion of the thoracolumbar spine for the initial period of the appeal. 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 10 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243 (intervertebral disc syndrome). The preponderance of the evidence establishes that the service-connected lumbar spine disability is not manifested by intervertebral disc syndrome productive of incapacitating episodes having a total duration of at least two weeks during the past 12 months. The April 2009 VA examination report revealed no incapacitation due to the lumbar spine disability. The evidence does not indicate that any physician prescribed bed rest or incapacitation. Physician-prescribed bed rest is the requirement for an incapacitating episode. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. For these reasons, the Board also finds that a disability evaluation in excess of 10 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a. Additionally, the Rating Schedule provides that any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. During the April 2009 VA examination report, the Veteran stated that he had localized pain in the lumbar area with radiation to the right leg associated with prolonged sitting or driving with flare-ups once a month to a scale of 9 to 10, lasting for hours to days. Upon review of the record, the Board finds that the Veteran's reports regarding radicular pain to the right lower extremity not credible as they are inconsistent and outweighed by the other evidence of record. For example, during the April 2009 VA examination, the examiner noted normal function and motor strength in both lower and upper extremities. There was normal sensation to pinprick, dull, light, touch, and vibratory sense in both upper and lower extremities. There was normal toe walk, heel walk, and heel-to-toe walk. The April 2009 VA examiner diagnosed the Veteran with DJD of the lumbar spine without radiculopathy. Further, VA treatment records reveal that the Veteran complained of low back pain during several visits, but denied numbness or radicular pain. Specifically, in a December 2007 VA treatment record, the Veteran complained of right-sided low back pain and denied radicular pain. In January 2008, the Veteran was treated for low back pain secondary to a strained muscle while working out; however, he denied paresthesias, numbness, or change in strength. The Board finds that such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). For these reasons, and upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the credible and probative evidence demonstrates that the Veteran does not have radiculopathy of the lower extremities, numbness, or paresthesias. A separate neurological disability has not been diagnosed. For these reasons, the Board finds that the evidence does not establish that the service-connected lumbar spine disability is productive of a separate and distinct neurological disability, and a separate rating under the pertinent neurological rating criteria is not warranted. Estraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's 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 disability 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. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's disability is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria for the Veteran's disability specifically provides for ratings based on a combination of history, symptoms, and clinical findings. The schedular rating criteria for the Veteran's lumbar spine disability specifically provides for ratings based on limitation of motion, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's lumbar spine disability has been manifested by pain, with limitation of forward flexion of the lumbar spine to greater than 60 degrees, a combined range of motion of the lumbar spine of greater than 120 degrees, and without muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour, and no incapacitating episodes due to the disc disease. Further, there is no credible evidence of a separate and distinct neurological disability due to the lumbar spine DJD. 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. "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. 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 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). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. It is noted that the Veteran is currently in receipt of a combined 100 percent schedular evaluation for his service-connected disabilities; however, this fact alone does not end the inquiry. See Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an 'additional' disability of 60 percent or more ('housebound' rate). See 38 U.S.C.A. § 1114(s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. The Board notes that the Veteran has been granted SMC under 38 U.S.C. § 1114(k) for loss of a creative organ. In accordance with Bradley, the Board has also considered whether the service-connected disabilities of record raise a claim for SMC for aid and attendance or at the housebound rate under 38 U.S.C. § 1114(s). In this case, the Veteran does not have a single service-connected disability rated as 100 percent disabling. As he does not have a single service-connected disability rated as 100 percent disabling, the issue of SMC at the housebound rate under 38 U.S.C.A. § 1114(s) is not implicated. ORDER An initial rating in excess of 10 percent for status-post lumbar strain and DJD of the lumbar spine is denied. REMAND The Veteran is seeking a compensable rating for hypertension. Upon review of the claims file, the Board finds there is a further duty to assist the Veteran in this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran was last afforded a VA examination in April 2009, over four years ago. In written statements dated June 2009 and August 2013 (in Virtual VA), the Veteran and his representative essentially contend that the hypertension disability has increased in severity since the last VA examination and is more severe than is contemplated by the current rating assigned. Although the mere passage of time is insufficient to require a new VA examination, the U.S. Court of Appeals for Veterans Claims (Court) has held that, where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately determine the current state of the disability, VA must provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992). In light of the Veteran and his representative's contentions that the hypertension disability has essentially worsened since his last VA examination, the Board finds that a new VA examination is warranted. Further, the last VA treatment record is dated March 19, 2009 from the Pensacola VA Medical Center (VAMC). On remand, updated VA treatment records should be obtained and associated with the claims file or the Virtual VA electronic claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all treatment records from the Pensacola VAMC from March 20, 2009 to the present. Any documents received by VA should be associated with the record. Any negative responses should be properly documented in the record. 2. Then, schedule the Veteran for a VA hypertension examination in order to assess the current severity of his hypertension disability. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The relevant documents in the claims file should be reviewed by the VA examiner in connection with the examination. 3. Thereafter, the issue of an initial compensable rating for hypertension should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs