Citation Nr: 1337303 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-27 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for blindness due to glaucoma. 2. Entitlement to an evaluation in excess of 40 percent for lumbar stenosis with multilevel degenerative joint disease (DJD), status post laminectomies. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The veteran had active service from October 1951 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, the Roanoke, Virgina, RO issued a rating decision which continued the 40 percent evaluation in effect for lumbar spine disability. In February 2012, the Veteran submitted a timely notice of disagreement, and the Veteran submitted a timely substantive appeal in September 2012 following the issuance of an August 2012 statement of the case (SOC). In November 2011, the Veteran sought service connection for blindness in both eyes. In August 2012, the RO issued a rating decision which denied that claim. In September 2012, the Veteran submitted a specific notice of disagreement, and a statement of the case (SOC) was issued in May 2013. In June 2013, the Veteran's representative submitted a letter which stated that the Veteran wished to appeal the denial of service connection for bilateral blindness due to glaucoma. Although the RO did not certify that issue to the Board, it is properly before the Board for appellate review. The record reflects that the Veteran's appointment of a representative changed during the pendency of this claim, but the most recent appointment, dated in December 2012, appoints the representative listed on the title page of this decision. During the pendency of the claims on appeal, the Veteran sought and was granted TDIU. The May 2013 rating decision also denied a claim for an evaluation in excess of 40 percent for radiculopathy, right leg. The Veteran has not disagreed with any aspect of the May 2013 rating decision. No aspect of either claim is before the Board on appellate review at this time; the Board notes that the period of time allowed for disagreement with the May 2013 rating decision has not yet expired. FINDINGS OF FACT 1. The Veteran did not report an eye injury or abnormality in service or at the time of VA examinations in 1959 and 1963, and no notation discloses an eye complaint or vision abnormality at the time of either examination. 2. The preponderance of the medical evidence establishes that the Veteran's glaucoma and blindness had an onset many years after the Veteran's 1954 separation from active service; and, there is no competent evidence linking the Veteran's glaucoma and blindness to his active service. 3. Refractive error noted in service is not a disease or injury under the meaning of applicable law and regulation for VA purposes. 4. VA medical providers have advised the Veteran to undergo lumbar fusion, which would be analogous to favorable ankylosis of the lumbar spine. 5. The Veteran's service connected lumbar spine disorder has not resulted in incapacitating episodes having a total duration of at least six weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for service connection for service connection for blindness due to glaucoma are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for a 50 percent evaluation for lumbar stenosis with multilevel degenerative joint disease, status post laminectomies, is approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (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). Letters issued in December 2010, and June 2012 advised the Veteran of all elements of a service connection claim and a claim for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, a January 2013 letter reiterated the elements of notice required for each claim. The Veteran has been represented throughout the pendency of this appeal. Here, neither the Veteran nor his representative has alleged prejudice with respect to either content or timing of notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that no defect in the timing or content of notice to the Veteran is apparent from the record. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA clinical records are associated with the claims file, and electronic records are associated with the claims files. The Social Security Administration (SSA) has been requested to provide any available records for the Veteran, and has responded that no records are available. The Veteran has been so notified. Service treatment records, including induction and discharge examinations and brief records related to the Veteran's required reserve component service following active duty are associated with the claims files. VA examinations to determine the severity of lumbar disability were conducted in May 2010, January 2011, and February 2013. These examinations are adequate for the determination below. The examinations involved a physical examination of the Veteran, review of the claims file, and an interview, and included findings that were relevant to the applicable rating criteria. The Board acknowledges that no VA examination as to the etiology or onset of glaucoma or blindness was conducted. In this regard, however, the Board notes that, in determining whether the duty to assist requires that a VA medical examination be provided with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2) , the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability (like pain, etc.), but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability). In this case, there is no evidence during the Veteran's service that he had an injury to either eye, and no abnormality of the eyes was noted at separation in 1954. The Veteran did not report eye or vision complaints or treatment in connection with post-service VA examinations in 1958 or 1963. The evidence establishes that the Veteran stopped working in the early 1990s as a result of glaucoma or blindness, but this evidence does not show onset of glaucoma or blindness until many years after the Veteran's 1954 service discharge. The post-service clinical records dated from 2002 to December 2102 disclose no report that the Veteran attributed his glaucoma or blindness to his service or that any provider attributed glaucoma or blindness to the Veteran's service, or that the Veteran reported onset of those conditions soon after service. The evidence of record, as set forth and analyzed below contains sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon, supra. There is no duty to afford the Veteran an examination or to Remand the claim to seek evidence. The Board has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. The Veteran initially requested, then cancelled, a hearing before the Board, by a statement submitted in August 2013. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board will therefore proceed with the adjudication of this appeal. 1. Relevant Laws and Regulations, Claim for Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); glaucoma is not a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Facts and analysis, claim for service connection for glaucoma or blindness The Veteran's service induction examination in 1951 shows that his vision was recorded as 20/30. During service, the Veteran requested evaluation for glasses in 1953, and a refraction error was noted. There is no notation that the Veteran incurred an eye injury in service. Separation examination in 1954 discloses that the Veteran's vision was described as 20/20. By regulation, congenital or developmental defects such as a refractive error of the eye are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Thus, the law and regulations governing awards of veterans' benefits do not authorize an award of service connection for refractive error, in the absence of superimposed disease or injury. There is no evidence or allegation that glaucoma or blindness resulted from refractive error. The evidence is also unfavorable to a finding that the Veteran incurred a superimposed eye injury in service. To the extent that the Veteran now claims that he experienced the initial symptoms of glaucoma in service or proximate thereto, which he does not necessarily contend, such statements are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his ______. See AZ v. Shinseki, No.2012-7046, 2013 WL XXXXXXX, at *Y (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In particular, the summary of a 1958 VA hospitalization in May 1958 for treatment of a herniated disc and partial hemilaminectomy discloses no finding of glaucoma or blindness, and there is no notation regarding eye complaints or treatment or history of a vision problem. The summaries of VA examinations conducted in 1958 and 1963 disclose no report of an eye complaint, loss of vision, incurrence of an eye injury in service, or history of treatment of glaucoma or blindness. His failure to report any complaints of blindness or visual problems at that time, is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. VA clinical records dated from 2002 through December 2012 reflect that the Veteran reported onset of glaucoma, followed by blindness, and that the Veteran became "legally blind" about 5 years prior to VA treatment in 2002. No VA provider attributed the Veteran's glaucoma or blindness to his service. No VA provider reported that the Veteran attributed his glaucoma or blindness to his service. The evidence establishes that the Veteran worked as a driver for many years after service until he was forced to retire because of vision loss. This too is evidence that tends to establish that the onset of glaucoma and blindness was many years after the Veteran's 1954 separation from active service. Consideration has been given to the Veteran's assertion that his glaucoma is somehow related to his active service. It is true that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, as to the specific issue in this case, glaucoma falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Glaucoma is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that eye pressure, field of vision, and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms of diminished vision, there is no indication that the Veteran is competent to etiologically link his current diagnosis of glaucoma and/or blindness to any incident occurring during his active service. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating eye disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Indeed, the lay statements are devoid of evidence that the Veteran complained of or reported vision loss chronically or continuously following his service discharge or within a presumptive period, and the preponderance of the medical evidence is against such a finding. The Veteran does not allege that glaucoma or blindness resulted from an injury or disease incurred in service or as a result of service or as a result of any service-connected disability. The credible evidence of record establishes that at least 9 years elapsed after the Veteran's service before he noticed vision loss. The record establishes that the Veteran sought clinical treatment for glaucoma by the early 1990s, when 30 years had elapsed after his separation. This evidence is unfavorable to the Veteran's claim. Moreover, as the Veteran has not indicated that any clinical evidence prior to 1990 is available, so it would be fruitless to conduct VA examination, as there is no objective evidence about the Veteran's vision or the onset of glaucoma or blindness until many years had elapsed following his service separation. The preponderance of the evidence is against the Veteran's claim for service connection for glaucoma or blindness. There is no reasonable doubt. 38 U.S.C.A. § 5107(b). The claim must be denied. 2. Relevant Laws and Regulations, Claim for Increased Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation sole on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Fenderson v. West, 12 Vet. App. 119 (1999). In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups and/or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). As for pain, pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Disabilities of the spine, such as degenerative disease of the lumbar spine (Diagnostic Code 5242), are to be rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, as it applies to the lumbar spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 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. 38 C.F.R. § 4.71a. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also 38 C.F.R. § 4.71, Plate V. Under Diagnostic Code (DC) 5243, intervertebral disc syndrome 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 upon Incapacitating Episodes, whichever results in the higher rating. The formula for rating intervertebral disc syndrome based upon incapacitating episodes provides for a 10 percent evaluation with incapacitating episodes having a total duration of at least one week, but less than two weeks during the past twelve months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A note following DC 5243 defines an incapacitating episode as 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. 38 C.F.R. § 4.71a, DC 5243, note 1. Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct. Facts and analysis, severity of lumbar disability Historically, the Veteran was granted service connection for lumbar strain beginning in 1958. The service-connected low back disability has been recharacterized several times. The service-connected disability is currently characterized as for lumbar stenosis with multilevel degenerative joint disease (DJD), status post laminectomies. The Veteran is also in receipt of a separate compensable rating for radiculopathy of the right lower extremity. Service connection is not in effect for any disorder of the cervical spine. The Veteran's clinical history reflects that he underwent lumbar hemilaminectomy in 1958. In 2004, he underwent L4-5 lumbar laminectomy for lumbar stenosis. Magnetic resonance imaging in 2005 disclosed degenerative disc disease of several vertebrae in the lumbar spine. At the June 2011 VA examination, the Veteran's forward flexion was to 10 degrees. He was able to move 10 degrees, but no more, in all planes of motion of the back. There was no limitation of motion after repetitions, and no objective evidence of pain with the limited motion shown by the Veteran. He had frequent falls. MRI disclosed slight disc bulging at L2-3, mild bulging at L3-4, status post laminectomy, and bulging disc at L4-5, with osteophytes, status post laminectomy. At the time of February 2013 VA examination, the Veteran had flexion to 20 degrees. He was unable to extend at the lumbar spine. He had lateral flexion and rotation to 10 degrees to the right and 20 degrees to the left, and similar ability to rotate. The examiner stated that the Veteran had no incapacitating episodes, but the combination of the Veteran's service-connected DJD with his radiculopathy and blindness was severe. He explained that the Veteran's blindness prevented him from using assistive devices such as a motorized scooter or walker that might otherwise allow him greater mobility with less pain. A 40 percent evaluation is the highest schedular evaluation available for limitation of motion of the lumbar spine unless there is ankylosis. The examiner specifically stated that there was no ankylosis, and the Veteran retains motion of the lumbar spine in all planes (forward flexion, extension, sidebending, and side rotation). The award of a higher (50 percent) rating is unwarranted because ankylosis of the thoracolumbar spine is not demonstrated. However, the Board notes that the Veteran has been advised on numerous occasion to undergo a lumbar fusion to help reduce his pain. See e.g., Neurological consults dated July 2006 and May 2010. The Veteran appears to have declined to undergo the fusion due to his age, declining health, and the lack of success with earlier spinal procedures. Nevertheless, because he has been advised undergo a lumbar fusion and at least some portions of the lumbar spine were effectively ankylosed, and resolving all doubt in his favor, the Board finds that the Veteran's low back disability should be rated as analogous to favorable ankylosis of the thoracolumbar spine. A higher 100 percent rating is not warranted, which necessitates ankylosis of the entire spine. Service connection is not established for the cervical spine. There is also no evidence that the Veteran has ankylosis or the functional equivalent of ankylosis of the cervical spine. Consideration has also been given as to whether a higher (60 percent rating) could be assigned for intervertebral disc syndrome resulting in incapacitation for at least 6 weeks during the preceding 12-month period. Such is not warranted, however. The Veteran himself reported that he did not have periods of incapacitation. Of equal, and even greater import, the record reflects that no provider has advised the Veteran that bedrest is required. The Board acknowledges that the Veteran is frail, and unable to ambulate except with a cane that he uses to feel his way. He falls several times a week. His wife stopped working to be his caregiver. He continues to walk, with pain. The Veteran does not seek medical evaluation for episodes of back pain because his providers have concluded that there are no treatment options available that might relieve the Veteran's pain, other than surgery, which he declines. However, the fact remains that the Veteran is not so functionally limited as to approximate confinement to bedrest six weeks in a 12-month period. He requires the continuous aid and attendance of his wife because of his lumbar spine disorder but also because of his non-service connected blindness. In deciding this claim, the Board acknowledges that the Veteran is competent to report symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected spine disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Extraschedular consideration Next, the Board must consider whether the Veteran is entitled to a higher evaluation on an extraschedular basis. The Board notes that the Veteran has been awarded TDIU. Nevertheless, as entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are different benefits and based on different factors, the Board must consider whether the Veteran is entitled to an extraschedular evaluation. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is authorized where schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the disability at issue. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court of Appeals for Veterans Claims set forth a three-step analysis the Board must follow in determining whether referral for an extraschedular disability rating is warranted under 38 C.F.R. § 3.321(b). The Court held that, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability (step one in the Thun analysis). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Then, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the Veteran's exceptional 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. Id. In this case, the rating schedule addresses the Veteran's symptoms, including functional loss. Although the rating assigned is the maximum available for limitation of motion (or lack thereof) of the lumbar spine, the rating schedule provides for separate ratings if the Veteran manifests additional neurologic impairment, such as impairment of the left leg due to radiculopathy. The fact that there are no additional treatment options open to the Veteran other than lumbar fusion has been considered in the assignment of the 50 percent rating, and is not equivalent to frequent hospitalization, and does not suggest that the Veteran is not adequately compensated by the regular rating schedule. The evidence does reflect that the Veteran has not been employed during the pendency of this appeal, and TDIU has, as noted above, been granted. The Board acknowledges the contention of the Veteran's representative that an extraschedular evaluation is warranted for this disability. The Board finds that the contentions raised by the representative have been addressed by the grant of TDIU prior to this decision on the basis that the Veteran's service-connected disabilities, considered together, preclude employment. The possibility of extraschedular evaluation for lumbar disability was considered by the RO, as noted by inclusion of the provisions of 38 C.F.R. § 3.321(b) in the August 2012 SOC. The Board agrees with the RO's determination. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Referral for extraschedular consideration for lumbar disability is not required. ORDER The appeal for service connection for blindness due to glaucoma is denied. An increased evaluation to 50 percent for lumbar stenosis with multilevel (DJD, status post laminectomies, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs