Citation Nr: 1334504 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-23 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for service-connected low back pain with disc space narrowing L5-S1 (hereinafter, "lumbar spine disorder"). 2. Entitlement to a rating in excess of 20 percent for service-connected status-post compression fracture deformity, T8-T9 (hereinafter, "thoracic spine disorder"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to October 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California which, in pertinent part, confirmed and continued the assigned 40 percent rating for the Veteran's service-connected lumbar spine disorder, and the assigned 20 percent rating for the service-connected thoracic spine disorder. The record reflects the Veteran originally requested a Board hearing before a Veterans Law Judge (VLJ) as part of his April 2010 Substantive Appeal. However, the Veteran withdrew his hearing request in December 2011. See 38 C.F.R. § 20.704(e) (West 2002). FINDINGS OF FACT 1. Even when taking into account the Veteran's complaints of pain and corresponding functional impairment, his service-connected lumbar spine disorder is not manifested by unfavorable ankylosis of the thoracolumbar spine; nor incapacitating episodes as defined by VA regulations having a total duration of at least 6 weeks during the past 12 months. 2. Even when taking into account the Veteran's complaints of pain and corresponding functional impairment, his service-connected thoracic spine disorder is not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; nor favorable ankylosis of the thoracolumbar spine. 3. Neither the Veteran's service-connected lumbar nor thoracic spine disorder is manifested by associated neurologic impairment that warrants a separate compensable evaluation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for the Veteran's service-connected lumbar spine disorder are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for a rating in excess of 20 percent for the Veteran's service-connected thoracic spine disorder are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in April 2008, which is clearly prior to the September 2008 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in December 2008 and May 2009, followed by readjudication of the appeal by the May 2009 Statement of the Case (SOC) and a January 2010 Supplemental SOC (SSOC) which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The aforementioned VCAA letters, in pertinent part, informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio. Moreover, the Veteran was also provided with the information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006), as well as a summary of the current schedular criteria for evaluating disabilities of the spine. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (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 veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. Various records were obtained and considered in conjunction with this case. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence which demonstrates symptoms of his service-connected lumbar and thoracic spine disorders which is not demonstrated by the evidence already of record. Moreover, he was accorded a VA medical examination regarding this case in June 2008 which included findings as to the symptomatology of these service-connected disabilities that are consistent with the other evidence of record and relevant rating criteria. No inaccuracies or prejudice is demonstrated with respect to this examination. In addition, even though it has been several years since this examination, the Veteran has not indicated either the service-connected lumbar and/or thoracic spine disorder has increased in severity since that examination to include a September 2013 appellate brief submitted by his accredited representative. Accordingly, the Board finds that this examination is adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the 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. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The Board notes that the Veteran's service-connected lumbar spine disorder was previously evaluated pursuant to Diagnostic Code 5295-5293 (for lumbar strain and intervertebral disc syndrome), while the thoracic spine disorder was evaluated pursuant to Diagnostic Code 5285 (for vertebra fracture residuals). However, the criteria for evaluating disabilities of the back have been substantially revised since service connection was established for these disabilities. For example, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 for evaluating intervertebral disc syndrome were amended, effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). The newly enacted provisions of this section allow for intervertebral disc syndrome (preoperatively or postoperatively) to be evaluated based either on the total duration of incapacitating episodes over the past 12 months or by combining (under 38 C.F.R. § 4.25) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. In addition, effective September 26, 2003, further changes have been made to the remaining criteria for evaluating spine disorders. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003). These revisions consist of a new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Additionally, associated neurological abnormalities (e.g., bowel or bladder impairment) are now for evaluation separately. These changes are listed under Diagnostic Codes 5235-5243, with Diagnostic Code 5243 now embodying the recently revised provisions of the former Diagnostic Code 5293 (for intervertebral disc syndrome). Inasmuch as the Veteran's current increased rating claims were received in February 2008, years after the effective date of the revised rating criteria, only the current version of this criteria is for consideration in this case. His lumbar spine disorder is current evaluated under Diagnostic Code 5243 (for intervertebral disc syndrome), and his thoracic spine disorder is evaluated under Diagnostic Code 5235 (for vertebral fracture or dislocation). Both Codes provide that the disability is to be evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine, with Diagnostic Code 5243 also warranting consideration of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Further, as detailed below, the lumbar and thoracic spines are considered together under the General Rating Formula for Diseases and Injuries of the Spine for impairment of the thoracolumbar spine. The current rating criteria now define normal range of motion for the various spinal segments 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The General Rating Formula for Diseases and Injuries of the Spine provides that 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent 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 is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the 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. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). Initially, the Board acknowledges that the Veteran has complained of back pain throughout the pendency of this case. As such, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are for consideration in evaluating the service-connected lumbar and thoracic spine disorders. Accordingly, efforts were made to simulate the effect of pain during flare-ups, to include repetitive motion testing on the June 2008 VA medical examination. However, as detailed below, the record does not reflect there is or would be functional impairment due to pain, to include flare-ups, that would warrant a rating in excess of that currently in effect. As detailed below, the record does not reflect the Veteran's complaints of pain does or would result in functional impairment to the extent necessary for ratings in excess of those currently in effect for the Veteran's service-connected lumbar and thoracic spine disorders. In regard to the General Rating Formula for Diseases and Injuries of the Spine, a rating in excess of 40 percent is only warranted for the lumbar spine disorder if there is evidence of unfavorable ankylosis. Regarding the thoracic spine disorder, a rating in excess of 20 percent is warranted if the thoracolumbar spine has forward flexion limited to 30 degrees or less, or ankylosis. A thorough review of the record, to include the June 2008 VA examination does not reflect the Veteran has ever been diagnosed with ankylosis of the thoracolumbar spine, to include the lumbar and/or thoracic spines individually. Further, the June 2008 VA examination shows the Veteran to have forward flexion to 75 degrees, with the Veteran reporting pain starting around 70 degrees. He also had forward extension, right and left lateral flexion, and right and left lateral rotation all to 15 degrees. Moreover, after three repetitions of all his range of motion in his thoracolumbar spine, there was no decrease in range of motion due to pain, fatigue, weakness, or lack of endurance. In fact, he seemed to have a little more flexion after the third forward flexion; he went to 80 degrees. Nothing in the other evidence of record shows the Veteran has had limitation of forward flexion of the thoracolumbar spine to the extent necessary for a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine even when taking into account his complaints of pain. The Board further notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint", citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The aforementioned range of motion findings for the thoracolumbar spine clearly reflect that he does not have immobility and consolidation of either the lumbar and/or thoracic spine. The Board acknowledges that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides for a separate rating for associated neurologic impairment of a service-connected spine disorder. However, a thorough review of the record, to include the June 2008 VA medical examination, does not reflect either the Veteran's service-connected lumbar or thoracic spine disorder is manifested by associated neurologic impairment that warrants a separate compensable evaluation. Turning to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the rating criteria indicates only the service-connected lumbar spine disorder warrants consideration of this Formula. However, even if the Board were to also consider the thoracic spine under this Formula, neither spine is shown to be manifested by incapacitating episodes as defined by VA regulations. In other words, the record does not show the Veteran experiences period(s) of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician due to either disability, and certainly not to the extent necessary for a rating in excess of 40 percent for the service-connected lumbar spine disorder; i.e., the lumbar spine disorder is not manifested by incapacitating episodes as defined by VA regulations having a total duration of at least 6 weeks during the past 12 months. The Board also wishes to reiterate that the Veteran has been apprised of the schedular criteria for evaluating the lumbar and thoracic spines, and he has not identified any outstanding evidence which demonstrates the symptomatology for higher schedular rating(s) nor has he indicated that either of these disabilities have increased in severity since the June 2008 VA medical examination to include the recent appellate brief from his accredited representative in September 2013. For these reasons, the Board finds that neither the Veteran's service-connected lumbar or thoracic spine disorder warrants a rating in excess of those currently in effect. In making this determination, the Board took into account the Veteran's complaints of pain and the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, as well as the potentially applicability of "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. However, a thorough review of the record does not indicate any distinctive period(s) where the Veteran's lumbar spine disorder warranted a rating in excess of 40 percent, or the thoracic spine disorder warranted a rating in excess of 20 percent, even when taking into account his complaints of pain. Therefore, the preponderance of the evidence is against his claim for increased schedular ratings. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate both the Veteran's service-connected lumbar spine disorder and thoracic spine disorder. Both of these disabilities are manifested, in essence, of pain and resulting functional impairment. Pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Board was required to explicitly take into account these complaints of pain as part of the schedular evaluations. Therefore, to find that the complaints of pain reflect symptoms that warrant extraschedular evaluation would be in violation of the prohibition against pyramiding found at 38 C.F.R. § 4.14. Moreover, it does not appear that the RO has evaluated whether the Veteran is entitled to extraschedular ratings, and the Veteran has not raised the matter himself. The rating criteria are therefore adequate to evaluate these service-connected disabilities and referral for consideration of extraschedular rating is not warranted. Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, although in his June 2009 Substantive Appeal the Veteran reported that he was unable to work due to his service-connected back disabilities, the December 2009 VA psychiatric examination report reflects that he was unemployable due to the combination of his physical and mental disabilities. Further, the RO granted entitlement to a TDIU effective April 1, 2009, the date his service-connected disabilities satisfied the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a) (2013) and the Board does not find that referral for extraschedular consideration prior to that date under 38 C.F.R. § 4.16(b) is warranted given the Veteran's December 2009 report as to the aggregate impact of his service-connected physical and mental disabilities. Therefore, no further discussion of entitlement to a TDIU is warranted in this case. ORDER Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disorder is denied. Entitlement to a rating in excess of 20 percent for service-connected thoracic spine disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs