Citation Nr: 1335847 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-45 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 2005. This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was afforded a Central Office hearing before the Board in July 2011. A transcript of the testimony offered at this hearing has been associated with the record. This issue was remanded for further development in January 2012. All relevant development having been completed, this claim now returns before the Board. The Board notes that, during the course of this remand, the Veteran was granted a separate 10 percent rating for radiculopathy, effective the date of claim, based on the results of the Veteran's February 2012 VA examination. Neither the Veteran, nor the Veteran's representative, have expressed disagreement with the disability rating assigned, therefore the Board finds that the issue of radiculopathy is not before the Board at this time. FINDINGS OF FACT The Veteran's service-connected degenerative joint disease of the lumbar spine has not been shown to be productive of limitation of forward flexion the thoracolumbar spine to greater than 30 degrees, but no greater than 60 degrees; of combined range of motion of the thoracolumbar spine is to no greater than 120 degrees; muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; incapacitating episodes having a total duration at least 2 weeks but less than 4 weeks during the past 12 months CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 10 percent for the Veteran's service-connected degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that 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) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in January 2012 for further development, specifically for a VA examination to adequately address the current level of severity of the Veteran's condition. The Veteran was provided with a VA examination in February 2012 and his claim was readjudicated in an April 2012 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The Board also points out that, as this is a claim ensuing from the grant of an initial rating, a lessened duty exists. Nevertheless, the Board finds that the VCAA letter dated in August 2005, as well as the prior remand in January 2012, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i). In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal, most recently in February 2012. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in February 2012. See 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 VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria The Veteran contends that an increased rating is warranted for his service connected low back disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, as in this case, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2013). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon 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 and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2013). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. The Board has evaluated the Veteran's disorders under multiple diagnostic codes to determine if there is any basis to increase the assigned ratings. Such evaluations involve consideration of the level of impairment of a Veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10 , 4.40, 4.45, 4.59. The Veteran's service-connected lumbar spine disability is currently rated as 10 percent disabled under 38 C.F.R. § 4.71a , Diagnostic Code 5237, and the general spine rating formula, for strain of the lumbar spine. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). Facts and Analysis Taking into account all relevant evidence, the Board finds that the criteria for a higher evaluation, for the Veteran's service connected degenerative disc disease of the lumbar spine, have not been met. In this regard, the Board notes that, in order to warrant a higher evaluation, the Veteran would have to be found to have 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 spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis or intervertebral disc syndrome causing incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The Board finds that this criteria have not been met. Private records dated during the course of this appeal show periodic treatment for complaints of back pain and stiffness, including regular chiropractic adjustments. The Veteran received a VA pre discharge examination in September 2005. At that time, he reported that sitting in a chair that moves up and down has caused him to have pain in his lower back. He reported that he had been diagnosed with no major condition, and that a mild analgesic provided relief. Upon examination, the range of motion was within normal limits and occurred without restriction or pain. There was no evidence of spasm. Repetition did not cause an increase in pain or decrease in range of motion. X-rays of the Veteran's back were normal at that time. A November 2006 MRI of the Veteran's lumbar spine showed degenerative changes at L5-S1 with bilateral neural foraminal narrowing right side greater than left. The Veteran received a VA fee basis examination in October 2007. At that time, the Veteran reported stiffness and weakness in his back, as well as intermittent low back pain. Upon examination, posture and gait were normal. There was no evidence of radiation of pain, spasm, or tenderness. Straight leg raising test was negative bilaterally. Lumbar spine range of motion was normal without ankylosis. After repetition however, the Veteran was additionally limited by pain, fatigue, and lack of endurance without evidence of incoordination or weakness. Major functional impact was pain. Additional limitation in degrees was zero. There was no evidence of intervertebral disc syndrome. He had normal motor and sensory function. The Veteran was diagnosed with degenerative disc disease of the lumbar spine at L5-S1 with neural foraminal narrowing. The Veteran received a VA examination for his back in April 2010. At that time, the Veteran reported limitations on walking, as well as stiffness and pain in his back. He reported constant moderate low back pain. Upon examination, posture and gait was within normal limits. Walking was steady, and leg length was normal. Examination showed no radiating pain on movement. Muscle spasm was absent. There was tenderness in the L1-S4 region. Spinal contour was preserved, though there was tenderness. There was no guarding of movement. Examination did not show any weakness. Muscle tone was normal. There was negative straight leg raising tests on both sides. There was no anklyosis of the spine. On range of motion testing, flexion as to 90 degrees. Extension was to 30 degrees. Right and left lateral flexion and rotation were all to 30 degrees. Repetitive range of motion testing showed no increased limitation of motion. There was symmetry of spinal motion with normal curves of the spine. Neurological examination showed no neurological deficits. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. During the Veteran's hearing testimony before the Board in July 2011, he discussed the problems he currently has with his back, and the severity of his symptomatology. The Veteran received a further VA examination in February 2012. At that time, the Veteran was diagnosed with degenerative disc disease with radiculopathy. Range of motion testing showed forward flexion to 80 degrees, with painful motion starting at 70 degrees. Extension was to 30 degrees with pain at 30 degrees. Right and left lateral flexion were both to 30 degrees with no objective evidence of painful motion. Right and left lateral rotation were both to 30 degrees with no objective evidence of painful motion. Upon repetition, forward flexion was reduced to 70 degrees. Repetition was specifically noted to cause less movement than normal, weakened movement, and pain on movement. The Veteran was also found to have pain on palpation of the mid to para right side of the lumbar spine associated with palpable spasms. Muscle strength testing was normal with no evidence of atrophy. Reflex testing was normal. Straight leg raising test results were positive on the right side, and the Veteran was found to have some radiculopathy symptoms on the right side (for which he was granted service connection in an April 2012 RO decision, which as noted above is not currently before the Board). X-rays of the Veteran's spine taken at that time show mild disc space narrowing of L5-S1. Thus, all of the medical evidence of record indicates that the Veteran does not meet the criteria for a higher rating for his service connected back disability. He has never been found to have limitation of flexion, even with pain, to less than 70 degrees, his combined range of motion of the thoracolumbar spine has always been greater than greater than 120 degrees, while he has been found to have muscle spasm at times, there is no evidence in the record of abnormal gait or abnormal contour, and there is no evidence of incapacitating episodes due to interveterbral disc syndrome, let alone a finding of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. As such, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for this disability. In reaching the above conclusion with respect to the Veteran's claim, the Board has not overlooked the Veteran's statements with regard to the severity of his back disability, particularly his statements contained in his July 2011 hearing. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain in his back; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with findings from the medical evidence. The Veteran is competent to report difficulty with his back. However, VA has created objective criteria which must be met to obtain a higher disability rating. Accordingly, the objective medical findings in his VA examination reports have been accorded greater probative weight. In light of the foregoing, the Board concludes that the weight of the evidence of record does not show that the Veteran has met the criteria for a higher evaluation for his back disability at any point during this appeal. As noted, the rating criteria provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The Board again notes that, in an April 2012 rating decision, the Veteran was granted a separate 10 percent evaluation for right lumbar radiculopathy, and neither the Veteran nor his representative expressed disagreement with the evaluation assigned. Therefore, this symptomatology is not at issue in the current case. The Board has considered whether any additional neurological abnormalities are present. However, there is no lay or medical evidence suggesting radiculopathy in the left lower extremity, or any indication of bowel or bladder impairment resulting from his service-connected lumbar spine disorder. Therefore, the Board concludes that no additional separate ratings are warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Extraschedular Consideration Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected lumbar spine disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's back disability with the established criteria found in the rating schedule for this disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as noted above, the criteria primarily relate to range of motion, though they do include pain on motion and the Veteran has been found to have a minimal limitation of motion even considering that pain. The Board again notes that the Veteran has a separate 10 percent rating for his neurological symptoms. The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence of record is against the claim of increased rating for the Veteran's back disability, and the benefit-of-the-doubt rule is therefore not for application. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra. As the preponderance of the evidence of record is against this claim, it must be denied. Rice Consideration In denying the Veteran's claim for increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran, or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In the instant case however, there is no evidence this disability alone renders him unable to work, nor does it appear that the Veteran has made any such claim; therefore, the Board does not find consideration of a TDIU rating to be necessary. ORDER Entitlement to an increased initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs