Citation Nr: 1334243 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-04 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to an initial disability rating in excess of 10 percent for a thoracolumbar spine disability. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2001 to March 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for posttraumatic stress disorder, assigning a 30 percent evaluation, gastroesophageal reflux disease, tinnitus, and L4-5 herniated disc status post laminectomy with radiating pain to the left leg and degenerative changes of the thoracic spine with trapezius muscle strain (otherwise referred to herein as a "thoracolumbar spine disability), assigning 10 percent evaluations, and left ear hearing loss and right shoulder strain, assigning noncompensable evaluations, all effective March 3, 2008; and denied service connection for a right wrist condition, right ear hearing loss, cervicalgia, a traumatic brain injury (TBI), a right knee condition, a left knee condition, and left shoulder pain. In May 2009, the Veteran submitted a notice of disagreement with the evaluation assigned for his back disability and denials of service connection for the neck, bilateral knees, left shoulder, and a TBI. He subsequently perfected his appeal for all of these issues except the TBI in January 2010. In February 2013, the Veteran presented sworn testimony during a video conference hearing in Denver, Colorado, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. A preponderance of the evidence fails to establish that the Veteran currently has a neck disability that is attributable to his active service. 2. A preponderance of the evidence fails to establish that the Veteran currently has a right knee disability that is attributable to his active service. 3. A preponderance of the evidence fails to establish that the Veteran currently has a left knee disability that is attributable to his active service. 4. A preponderance of the evidence fails to establish that the Veteran currently has a left shoulder disability that is attributable to his active service. 5. Even when considering his complaints of pain, the Veteran's service-connected thoracolumbar spine disability resulted in forward flexion limited to no less than 69 degrees, combined range of motion limited to no less than 203 degrees, no muscle spasm, guarding, abnormal gait, or abnormal spinal contour, and no incapacitating episodes of intervertebral disc syndrome at any point during the period on appeal. CONCLUSIONS OF LAW 1. A neck disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. A right knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 3. A left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 4. A left shoulder disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 5. The criteria for an initial disability rating in excess of 10 percent for a service-connected thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. A March 2008 letter provided all required notice elements, including information on disability ratings and effective dates in compliance with Dingess. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA treatment records, and VA examination report are in the file. This includes VA clinical records through September 2012 associated in the Virtual VA electronic folder or "e-folder." The Veteran has not identified any additional private or other treatment records that he felt were relevant to these claims or that he wished for VA to obtain. In September 2008, the RO informed the Veteran that not all of his service treatment records could be located. In a case such as this where a veteran's service records are incomplete, the Board's obligation to explain its findings and conclusions, and to carefully consider the benefit-of- the-doubt doctrine, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board notes, however, that O'Hare does not create a presumption that the missing treatment records would, if they still existed, necessarily support the Veteran's claim. Case law does not establish a heightened "benefit of the doubt" when the Veteran's service treatment records have been destroyed, only heightened duties of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the Veteran in developing the claim, and to explain its decision. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In fulfilling its heightened obligation, VA requested that the Veteran submit any service records or other relevant documents that he possessed. See RO letter, September 2008. The Veteran responded by submitting what appear to be a complete copy of his service treatment records. VA has fulfilled its heightened duty. Moreover, the Board notes that the Veteran's service connection claims are ultimately being denied based on the lack of current disability, not solely on a lack of in-service injury. As such, service treatment records would not help to substantiate his claims. The record indicates that the Veteran underwent VA general medical examination to evaluate his claimed neck, bilateral knee, left shoulder, and thoracolumbar spine disabilities in December 2008. He was afforded a second VA examination to further evaluate his thoracolumbar spine disability in October 2009. The reports from those examinations have been included in the claims file for review. The examinations involved a review of the claims file, a thorough examination of the Veteran, including the appropriate range of motion testing, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examinations of record are adequate to decide these claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Further, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected thoracolumbar spine disability since he was last examined. 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. A new VA examination is not necessary for the Veteran's increased rating claim at this time. Some discussion of the Veteran's personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the Veteran concerning his contentions regarding the nature and etiology of his neck, bilateral knee, left shoulder, and back complaints. Notably, the Board held the Veteran's case open for 30 days in response to his hearing testimony that he would be undergoing a VA MRI of the spine and would submit the report. The Board granted an additional 90 day extension to submit to additional evidence in response to a request from the Veteran's representative in May 2013. However, the Veteran failed to submit any such report or to verify that he had undergone the MRI. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield, supra. II. Merits of the Claims A. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A review of the medical evidence of record does not establish that the Veteran has a current neck, right knee, left knee, or left shoulder disability. Although the VA examination report and some VA treatment records note the Veteran's complaints of neck, bilateral knee, and left shoulder pain, none of these have associated his pain with an objective findings or a definitive diagnosis or any underlying disability of the neck, right or left knee, or left shoulder. As noted above, the Veteran was afforded a VA examination to address his claimed disabilities in December 2008. The VA examiner provided a thorough physical examination and concluded that he could not diagnose any disorder of the neck, right or left knee, or left shoulder. The Veteran's cervical spine, bilateral knee, and left shoulder examinations were normal and showed no acute pathology or residuals thereof. Although the examiner noted the Veteran's complaints of pain, he was not able to attribute these complaints to any underlying pathology of the neck, either knee, or left shoulder. The Board notes that the VA treatment records are also negative for any neck, right or left knee, or left shoulder diagnosis. A May 2009 VA internal medicine note included a physical examination of the Veteran. Such examination specifically noted that the Veteran's neck had full range of motion. The Veteran's complaints of bilateral shoulder and knee pain were noted, but the examination revealed normal extremity and neck physical examinations. This record provides no diagnosis of underlying pathology related to these complaints. Although the Veteran's complaints of neck, bilateral knee, and left shoulder pain are noted in the medical evidence, there remains no medical evidence of underlying pathology or assigning a current diagnosis to these complaints. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Significantly, the physical examinations performed by the VA examiner at the VA December 2008 examination, as well as the x-rays provided, found no evidence of a neck, right knee, left knee, or left shoulder disorder. The Veteran's complaints of pain could not be attributed to an underlying pathology or diagnosis other than one amounting to pain. Put another way, the evidence does not show that the Veteran has a current neck, right knee, left knee, or left shoulder disability or that he has had any such chronic disability during the pendency of the appeal. As such, the first element of Hickson is not met and service connection cannot be granted for any of these claims. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consideration has also been given to the Veteran's contentions that he has current neck, bilateral knee, and left shoulder disabilities. However, the Board finds that his opinion is not competent evidence in this regard because he has not demonstrated the medical expertise needed to render an opinion on the nature of his pain or any associated orthopedic diagnosis. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he experiences pain, he is not competent to attribute those complaints of pain to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). His assertions are therefore not competent evidence of a diagnosis of a neck, bilateral knee, or left shoulder disability. The Veteran's opinion would also be significantly outweighed by the negative opinion from the December 2008 VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of the Veteran's complaints of neck, bilateral knee, and left shoulder pain. Given the competent medical evidence showing no disability, as already discussed above, the Board finds that the preponderance of evidence is against a finding that the Veteran has or had a neck, right or left knee, or left shoulder disability throughout the appeals period. Accordingly, the Board finds that the claims of entitlement to service connection for a neck disability, a right knee disability, a left knee disability, and a left shoulder disability must be denied. In reaching this conclusion, 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 of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's thoracolumbar spine disability has been initially evaluated as 10 percent disabling. He seeks a higher initial rating. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated 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 method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2013). For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2013); see also 38 C.F.R. § 4.71a, Plate V (2013). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. 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. Id. Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1) (2013). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. Id. at Note (1). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran was first examined for his thoracolumbar spine disability in December 2008. At that time, he complained of intermittent daily pain the bilateral lumbar area and between the mid-scapular area moving up to the mid-cervical area. He reported that his back pain was brought on by walking for two miles, bending forward at the waist, sexual relations, carrying greater than 60 to 90 pounds, running for one half of a mile, standing for 30 minutes, and driving for 60 minutes. He also reported that sexual relations and running cause his back pain to radiate to the left leg, along with numbness and tingling down the left leg and into the second digit of the left foot. He indicated that repositioning, movement, lying down, stretching, and medication helped his symptoms. He also indicated that he was able to continue his usual activities despite his back pain. The examiner observed that the Veteran moved quickly and easily with no abnormal gait and appeared to be in no distress. He did not observe any palpable spasm or tenderness to palpation of the cervical and thoracolumbar spine or adjacent musculature. The Veteran had a normal cervical curve and lumbar lordosis. The examiner observed a one inch by one quarter of an inch scar over the Veteran's lower lumbar spine, but it was without redness, tenderness, elevation, depression, soft tissue loss, or adhesions. He noted that the Veteran's deep tendon reflexes were normal in the upper and lower extremities and that he had normal neurosensory function in the lower extremities. He recorded range of motion measurements for the thoracolumbar spine of 44 degrees of rotation bilaterally, 31 degrees of lateral motion bilaterally, 20 degrees of extension, and 77 degrees of flexion with pain at 69 degrees. He notes that there was no observed manifestation of pain other than on forward flexion and that there was no additional limitation with repeated motion. The examiner diagnosed the Veteran with lumbar L4-5 herniated disc, status post microdiscectomy with laminectomy. He noted the Veteran's complains of occasional radiating pain to the left leg, but noted that the left leg examination was normal. The Veteran was next afforded a VA examination in October 2009. At that time, he complained of intermittent centralized low back pain that radiates to the posterior left leg and occurred every other day. He indicated that the pain was brought on by various physical activities, including wave-boarding or tubing, extending hiking or biking, and lifting greater than 100 pounds. He reported than pain medication, stretching, a hot bath, massage, and rest helped his back pain. He reported that his back pain caused him to work more slowly at particular tasks and take breaks at work, interfered with sexual relations, and limited his ability to participate in particular recreational activities including water sports and snowboarding. He denied having any periods of incapacitation in the preceding 12 months. The examiner observed that the Veteran was ambulatory with no assistive devices and moved fluidly and easily with a normal gait and station. Neurological examination shower normal symmetrical deep tendon reflexes, musculature, and neurosensory function in the lower extremities. The examiner noted a one inch by one quarter of an inch scar on the lower midline area of the back with no redness, tenderness, elevation, depression, soft tissue loss, or adhesion. The scar was stable and did not affect joint motion. The examiner also noted that the Veteran had normal lumbar lordosis with no tenderness or spasms to palpation of the lumbosacral spine or adjacent musculature. He recorded range of motion measurements of 34 degrees of right rotation, 30 degrees of left rotation, 20 degrees of right lateral motion, 19 degrees of left lateral motion, 74 degrees of flexion, and 30 degrees of extension. He noted that pain manifestation was observed only at the end of right lateral motion and flexion and that repetitive motion did not cause additional limitations. He diagnosed the Veteran with L4-5 herniated disc, status post discectomy with laminectomy, and concluded that there was no objective evidence of sciatica. In addition to the VA examination reports, the medical evidence of record includes VA treatment records for the low back which are consistent with the VA examination findings. Notably, a December 2010 VA treatment record references a 2008 thoracic MRI showing mild degenerative joint disease. Although the Veteran's complaints of radiating pain in the left leg, the VA treatment records are negative for any diagnoses relating to neurological impairments. Significantly, a September 2012 VA treatment record references negative EMG testing in 2007. In addition to the medical evidence, the Veteran has provided personal statements and hearing testimony, as well as statements from his friends and parents. This lay evidence corroborates the functional limitations noted by the VA examiners, including his chronic complaints of low back pain radiating to his legs and limited physical abilities. Based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for an initial disability rating in excess of 10 percent for his thoracolumbar spine disability. There is no evidence of forward flexion of the thoracolumbar spine no greater than 60 degrees, combined range of motion of the thoracolumbar spine no greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. Rather, even considering the earliest point at which the Veteran complained of pain, his forward flexion has been limited to no less than 69 degrees and his combined range of motion has been limited to no less than 203 degrees. Further, he did not demonstrate muscle spasm, guarding, abnormal gait, or abnormal spinal contour at any time. In the absence of evidence of forward flexion limited to 60 degrees, combined range of motion limited to 120 degrees, or muscle spasm or guarding resulting in abnormal gait or spinal contour, an initial disability rating in excess of 10 percent based on limitation of motion or ankylosis under the General Rating Formula for Diseases and Injuries of the Spine cannot be assigned for the Veteran's thoracolumbar spine disability. With respect to the possibility of assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45 for the Veteran's thoracolumbar spine disability, the Board has considered the Veteran's complaints of painful motion. Notably, the Board used the point at which the Veteran first complained of pain at his VA examination to evaluate his range of motion. As such, the Board finds that additional compensation need not be assigned for the Veteran's thoracolumbar spine disability under 38 C.F.R. §§ 4.40 or 4.45. See also DeLuca, supra. The Board further emphasizes that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Turning to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that there is no indication in the medical evidence of record that the Veteran has experienced any incapacitating episodes as defined in VA regulations. Thus, an increased rating cannot be assigned under these criteria for any period during the appeals period. The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code. There is no evidence of any radiculopathy, bowel or bladder impairment, or other neurologic abnormalities to warrant separate evaluations. As noted above, the VA examiner specifically found that the Veteran did not have any objective evidence of sciatica. Although the Veteran has complained of pain with sexual relations, there is no evidence of any erectile dysfunction or other neurological impairment for which the Veteran can be assigned a separate rating. Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 10 percent disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Fenderson, supra. 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 schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected thoracolumbar spine disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability rating contemplate his complaints of pain and limitation of motion. 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. Further, even if the Veteran's arthritis, documented in the 2008 thoracic MRI, did not result in compensable limited motion, 38 C.F.R. § 4.59 allows for the minimum compensable evaluation for his painful motion. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected thoracolumbar spine disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. Accordingly, the Board finds that the claim of entitlement to an initial disability rating in excess of 10 percent for a thoracolumbar spine disability must be denied. In reaching this conclusion, 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 claim of entitlement to an increased initial rating, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz, supra. ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to an initial disability rating in excess of 10 percent for a thoracolumbar spine disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs