Citation Nr: 1337495 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-22 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain. 2. Entitlement to a disability rating in excess of 10 percent for cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to August 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran indicated in the May 2010 substantive appeal that he wanted a travel Board hearing. The Veteran withdrew his request for a hearing by written correspondence in May 2011. Accordingly, the Board considers the Veteran's request for hearing to be withdrawn and it will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (2013). FINDINGS OF FACT 1. The evidence of record reveals that the Veteran's service-connected lumbar strain was manifested by flexion greater than 60 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees with consideration of limitation of motion due to pain and on repetitive use and no evidence of abnormal gait, abnormal spinal contour, ankylosis or intervertebral disc syndrome. 2. The preponderance of the evidence shows that the Veteran's service-connected cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist is characterized by mild impairment throughout the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). 2. The criteria for a disability rating in excess of 10 percent for service-connected cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased-compensation claims, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). The Board finds that a letter dated in April 2009 satisfied the duty to notify provisions prior to the initial AOJ decision in June 2009. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the Veteran that he should submit evidence showing his service-connected lumbar strain and cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist have increased in severity. The letter listed examples of evidence that may show an increase in a disability, such as a statement from his doctor containing physical and clinical findings and lay statements based on personal knowledge of how the disability has become worse. The Veteran was informed of the types of medical or lay evidence that was for consideration in rating the disabilities at issue, including evidence as to the impact of his disabilities on his employment. The Veteran was also provided with the following examples of evidence that may affect his disability rating: information about on-going treatment records, recent Social Security determinations, statements from his employer about job performance, lost time or other information, and lay statements discussing the Veteran's disability symptoms from those who have witnessed how they affect him. The Veteran was advised of how VA determines the disability rating and effective date. Furthermore, the letter notified the Veteran of the evidence that VA will seek to provide and the information the Veteran is expected to provide in substantiating his claims. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA examination reports dated in May 2009 and March 2012 and lay statements from the Veteran. The May 2009 and March 2012 VA examination reports reflect that the examiners obtained an oral history of the Veteran's service-connected lumbar spine disability and cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist and evaluated the Veteran with respect to these disabilities. The examiners documented in detail the findings of the physical examinations, the claimed symptoms and the effect those symptoms have on his occupational functioning and daily activities. Nonetheless, the May 2009 and March 2012 VA examiners noted they were not provided with the claims file to review in conjunction with examination. In some instances, the United States Court of Appeals for Veterans Claims (Court) has held that a failure to review the claims file renders a VA examination inadequate for rating purposes. See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) ("The [VA] examiner should have the Veteran's full claims file available for review."), but see Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination). See also 38 C.F.R. §§ 4.1, 4.2 (2012). However, the Court held in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), that when VA undertakes to provide a medical examination or obtain a medical opinion, the relevant inquiry is whether "the examiner providing the report or opinion is fully cognizant of the claimant's past medical history." In this case, the VA examiners obtained a history of the Veteran's back and right upper extremity disabilities and evaluated the Veteran's current symptoms. The Board finds that the examiners were apprised of the Veteran's relevant medical history as it pertains to his current claims. Based on the foregoing, the Board concludes that the VA examinations are adequate for rating purposes. Furthermore, the claims file contains the Veteran's statements in support of his claims. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently for consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board's consideration of the low back issue on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Criteria and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b). 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). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2013). 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 (2013). 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 misaligned joints, due to arthritis, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Lumbar Strain The Veteran's service-connected lumbar strain is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Under Diagnostic Code 5237 (lumbosacral strain), 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 assigned 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. A 20 percent rating is assigned under Diagnostic Code 5237 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. Forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Under 37 C.F.R. § 4.71a, Plate V, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (1), appending the diagnostic code, also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id., Note (1). The Veteran was provided with a VA examination in June 2009. He reported that his current treatment for his lumbar strain includes ibuprofen and ice. He also sees a rolfer (someone who works with the fascia) and this helps his back. The Veteran's response to treatment is fair. He reported problems with urinary frequency, nocturia, erectile dysfunction, numbness, paresthesias and leg or foot weakness. The examiner noted that the etiology of these symptoms is unrelated to the Veteran's lumbar strain disability. Physical examination revealed that the Veteran's posture, head position and gait were normal. The Veteran had lumbar flattening. There was no evidence of scoliosis, reverse lordosis, kyphosis, gibbus, or list. The examiner also observed that the Veteran did not have thoracolumbar spine ankylosis. There was no objective evidence of spasm, atrophy, guarding, tenderness or weakness of the thoracic sacrospinalis. The examiner noted that there was no muscle spasm, localized tenderness or guarding severe enough to be responsible for an abnormal gait or spinal contour. Motor, muscle and reflex evaluation was normal. Range of motion testing revealed that the Veteran's flexion was normal from zero to 90 degrees. Extension was limited to 20 degrees. Left lateral flexion was from zero to 10 degrees and right lateral flexion was from zero to 12 degrees. Left and right lateral rotation was from zero to 30 degrees. There was objective evidence of pain after repetitive motion; however, range of motion was not reduced. The examiner noted that pain on lateral flexion of the thoracolumbar spine began at 10 degrees on the left and 12 degrees to the right. This was unchanged after three repetitions. Pain on extension started at 20 degrees and was the same after three repetitions. Pain on right lateral rotation began at 20 degrees after three repetitions. The Veteran worked full time in home remodeling. He lost one week of work in the 12 month period prior to June 2009 due to back pain. His lumbar spine strain results in increased absenteeism. It also results in decreased mobility, problems with lifting and carrying, decreased strength of the lower extremity and pain. The Veteran's lumbar strain has a moderate effect on chores, exercise, sports and recreation and a severe effect on shopping and traveling. The Veteran underwent another VA examination in March 2012. The Veteran reported that his back pain comes and goes. It is present about 15 days out of a month. The pain occurs in the lower back on one or both sides. The pain will also radiate down into the buttocks, but not into the legs. There were no bowel, bladder or urination symptoms due to the back. Occasionally, he will get brief sharp pains in his back. The Veteran reported flare-ups that impact the function of his thoracolumbar spine that last from one to three days. Physical examination revealed flexion was from zero to 90 degrees or greater with no evidence of pain. Extension was limited to 20 degrees with pain beginning at 10 degrees. Right and left lateral flexion was to 20 degrees with pain beginning at 15 degrees. Right and left lateral rotation was to 30 degrees or greater with no evidence of painful motion. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive testing. There was evidence of functional loss or functional impairment of the thoracolumbar spine to include less movement than normal, excess fatigability and interference with sitting, standing or weight-bearing. The Veteran had soreness to palpation in the left lumbar paraspinal muscles, left sacroiliac joint and down into the left buttock. The examiner noted that muscle spasm or guarding was present, but it did not result in abnormal gait or spinal contour. Muscle, sensory and reflex examinations were normal. The examiner also reported that there was no evidence of radicular pain or any other signs of radiculopathy. He also determined that there were no other neurologic abnormalities or findings related to the thoracolumbar spine condition to include bowel or bladder problems or pathologic reflexes. The examiner documented that the Veteran does not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner provided the opinion that the Veteran's lumbar spine impacts his ability to work. He explained that the Veteran works in construction and when the back is symptomatic, the Veteran will not go up or down ladders. The pain also will result in leaving work early or missing work. Sedentary work is not really affected. Based on the evidence of record, the most pertinent discussed above, the Board finds that flexion of the Veteran's thoracolumbar spine was normal from zero to 90 degrees to include consideration of pain on repetitive use throughout the appeal period. The thoracolumbar spine was not limited to 60 degrees or less and the combined range of motion of the thoracolumbar spine was greater than 120 degrees even with consideration of limitation of motion due to pain and any limitation in function after repetitive use. Furthermore, the medical evidence shows that any muscle spasm or guarding does not result in abnormal gait or abnormal spinal contour. Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also considered whether the Veteran is entitled to a separate disability rating or a higher disability rating under other Diagnostic Codes. The June 2009 VA examiner determined that the Veteran's complaints of with urinary frequency, nocturia, erectile dysfunction, numbness, paresthesias and leg or foot weakness were not related to the Veteran's lumbar strain disability. The March 2012 VA examination also showed that the Veteran did not have any neurological disabilities to include bowel or bladder problems as a result of his service-connected lumbar strain. Therefore, the Veteran is not entitled to a separate rating for a neurological disorder due to his service-connected lumbar spine strain. Spine conditions may also be rated under Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). A 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months and a 40 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, 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. Id. at Note (1). In this case, the evidence of record does not show that the Veteran has a diagnosis of IVDS or that it results in physician prescribed bed rest. The Board has considered whether staged ratings are appropriate. The evidence of record shows that the Veteran's lumbar strain symptoms have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. In conclusion, the Board notes that the benefit of the doubt is to be resolved in the Veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, the Board finds that the preponderance of the evidence is against the claim and an assignment of a disability rating in excess of 10 percent for service-connected lumbar strain is not warranted. See 38 C.F.R. § 3.102 (2013). According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it 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 the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected back disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's lumbar strain with the established criteria found in the rating schedule for lumbosacral strain shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this regard, the regulations specifically address the Veteran's low back pain with resulting reduced range of motion. The rating criteria consider the functional impact of the Veteran's low back pain and reduced range of motion. The evidence does not indicate that his lumbar spine strain has caused marked interference with his employment that is not already contemplated in the rating schedule. Furthermore, the medical record does not show that the Veteran's service-connected back disability has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Cubital Syndrome of the Right Elbow with History of Carpal Tunnel Syndrome of the Right Wrist The Veteran's service-connected cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist is currently rated under Diagnostic Code 8515 (2013), which evaluates incomplete paralysis of the median nerve. Under Diagnostic Code 8515, mild incomplete paralysis is rated 10 percent disabling on the major and minor side; moderate incomplete paralysis is rated 20 percent disabling on the minor side and 30 percent disabling on the major side; and severe incomplete paralysis is rated 40 percent disabling on the minor side and 50 percent disabling on the major side. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Veteran is right hand dominant and therefore, his right upper extremity is considered the major side under this diagnostic code. See May 2009 VA examination report. Incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Complete paralysis of the median nerve is marked by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the ulnar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbance. Id. The words "mild," "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). The Veteran was provided with a VA examination in May 2009. The Veteran reported that his right wrist bothers him every day. Activities make it worse. He wears splints almost every night and he wears a splint during the day three to four times a month. The Veteran reported pain and paresthesias of the right wrist. The right long and ring finger want to curl up and it hurts more in the wrist when they are fully flexed. With respect to symptoms of the right elbow the Veteran informed the examiner that his cubital syndrome should be the left elbow and not the right elbow. Physical examination revealed muscle strength of the upper extremity was five out of five. There was decreased strength in flexion of the right long finger. The affected nerve was the median nerve. The right wrist was symptomatic for carpal tunnel. There was positive Tinel's sign and positive Phalen's test. He had numbness and tingling in the index, long and ring fingers that resolved several minutes after testing was conducted. He also had decreased strength in flexion of the long finger. The Veteran had decreased pain and light touch with respect to the median nerve. Reflex examination was normal. The Veteran worked full time as a home remodeler. He lost one week of time in the twelve months prior to the examination due to pain. The Veteran's right carpal tunnel syndrome impacts the Veteran's occupational activities due to decreased strength of the upper extremity and pain. It has a moderate effect on sports, recreation and traveling. The Veteran underwent another VA examination in March 2012. The Veteran did not report any symptoms of the right arm with respect to cubital syndrome as he explained to the examiner the cubital syndrome is in the left arm. The Veteran did not have constant pain, intermittent pain, paresthesias and/or dysesthesias or numbness of the right upper extremity. Muscle strength, reflex and sensory evaluations of the right upper extremity were normal. The examiner determined that the right radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, circumflex nerve, long thoracic nerve, upper radicular group, middle radicular group and lower radicular group were normal. The examiner determined that the Veteran's nerve condition did not impact the Veteran's ability to work. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's peripheral neuropathy of the right upper extremity more closely approximates mild incomplete paralysis of median nerve throughout the entire appeal period. In this regard, the Veteran has consistently report that he does not have cubital syndrome of the right elbow. The Veteran indicated in the May 2009 VA examination that he had pain and paresthesias of the right wrist. The Veteran had decreased strength in flexion of the right long finger and decreased pain and light touch with respect to the median nerve in May 2009. Muscle strength, reflex and sensory evaluations of the right upper extremity were normal in March 2012 and the examiner determined that the right upper extremity nerves were normal. Furthermore, the preponderance of the evidence reveals that the Veteran's cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist has had a mild impact on employment from decreased strength of the upper extremity and pain and that the Veteran has had to reduce his hours at least in part due to his right upper extremity disability. The Board has considered whether staged ratings are appropriate. The evidence of record shows that the Veteran's cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist has not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. With respect to whether the claim should be referred for extraschedular consideration, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist is inadequate. A comparison between the level of severity and symptomatology of the Veteran's cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist with the established criteria found in the rating schedule for incomplete paralysis of the median nerve shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence does not reflect that the Veteran's cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist has caused marked interference with employment beyond that is not already contemplated in the assigned evaluation. Furthermore, the record does not show that the Veteran's cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist has necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Rice Consideration Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on unemployability due to service- connected disability; 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. The Board notes that the Veteran submitted a statement in November 2010 asserting that due to his VA Disability and other health problems (specifically bilateral knee disability, lower back pain and right wrist) that he cannot keep his business producing at the level he has done in prior years. He explained that he is limited most weeks to 20-25 hours of labor due to pain and lack of mobility. He also had to give up roofing and concrete work completely due to his physical limitations. The Veteran noted that he is unable to supply his family with the financial stability he should be able to because he cannot work the hours or perform the types of labor he should. The Board concludes that the statement submitted by the Veteran in November 2010 provides evidence of how his service-connected disabilities have affected his employment. However, the Board does not construe these statements to indicate that the Veteran is asserting that he is unable to obtain or maintain employment. Furthermore, a review of the record shows that the Veteran has not argued, and the record does not otherwise reflect, that the Veteran's service-connected lumbar strain and/or cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain is denied. Entitlement to a disability rating in excess of 10 percent for cubital syndrome of the right elbow with history of carpal tunnel syndrome of the right wrist is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs