Citation Nr: 1337534 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-09 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an evaluation in excess of 20 percent for osteoarthritis of the lumbar spine with degenerative disc disease (previously evaluated as spasm, paravertebral muscles of the lumbar spine). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Luke Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1970 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which continued a 20 percent rating for spasm, paravertebral muscles of the lumbar spine. The Veteran appealed the decision. A May 2011 VA examination report recharacterized the Veteran's diagnosis as osteoarthritis of the lumbar spine with degenerative disc disease, based on the progression of the Veteran's disability. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's service-connected osteoarthritis of the lumbar spine with degenerative disc disease has not resulted in limitation of flexion to 30 degrees or less; nor has there been a showing of ankylosis of any portion of the spine. There have been no incapacitating episodes. 2. The Veteran's service-connected osteoarthritis of the lumbar spine with degenerative disc disease has not resulted in objective neurological impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for the Veteran's osteoarthritis of the lumbar spine with degenerative disc disease have not been met at any time during the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed 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) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist In correspondence dated June 2010, VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2013). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim for an increased disability rating, the VCAA requirement is general notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, prior to the decision on appeal, a letter from VA dated June 2010 notified the Veteran of what evidence must be shown to support an increased rating claim and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. This letter also provided an explanation of how VA determines disability ratings and effective dates. Therefore, the duty to notify is satisfied. VA's duty to assist under the VCAA includes helping the Veteran obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). Here, the Veteran's service treatment records are in the claims file. Additionally, outpatient clinical records from various VA facilities are of record, including treatment records from VAMCs in Norfolk, Richmond, and Hampton, as requested by the Veteran's representative in the May 2012 VA Form 646, Statement of Accredited Representation in Appealed Case. The Veteran has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2013). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran a VA examination in May 2011. The examination report is thorough and supported by the other evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. It is, therefore, adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In its May 2012 VA Form 646, the Veteran's representative argued that an additional VA examination was required because the Veteran's last examination was over one year old. There was no argument that the Veteran's condition had actually changed, nor is there medical evidence demonstrating a change in severity. Therefore, based on the adequate examination of record, the absence of evidence of worsening symptomatology since the last examination, and the fact there is no rule as to how current an examination must be, the Board concludes the examination report in this case is adequate upon which to base a decision. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that the mere passage of time does not require VA to provide a new medical examination). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claim. Analysis Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If there is a question as to which evaluation to apply to the Veteran's disability, 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). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (holding that the relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim). As discussed above, the Veteran's service-connected osteoarthritis of the lumbar spine with degenerative disc disease is currently evaluated as 20 percent disabling. The Veteran claims that the rating does not accurately depict the severity of his condition. 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 (2013). 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. The rating schedule is also intended 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 (2013). 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 (2013). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating will be assigned for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Under the General Rating Formula, 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, disabilities are evaluated as follows: 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 (20 percent); Forward flexion of the thoracolumbar spine to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine (40 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire spine (100 percent); 38 C.F.R. § 4.71a, General Rating Formula (2013). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2) (2013). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. 38 C.F.R. § 4.71a, General Rating Formula, Note (6) (2013). A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. Id. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. Id. A 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past twelve months. Id. For these purposes, an incapacitating episode is defined 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. Id. After a full review of the record, the Board concludes that an evaluation in excess of 20 percent for the service-connected osteoarthritis of the lumbar spine with degenerative disc disease is not warranted for any period from one year prior to when the claim was received in June 2010 to the present. A December 2009 VA medical record indicates the Veteran received treatment for pain in the left side of his lower back. The Veteran described the pain as aching and throbbing, said it did not radiate, and reported that it lasted for five days. He said that the pain only occurred when he changed from a sitting or lying position to a standing position. The Veteran did not report numbness, tingling, swelling, bowel or bladder changes. On physical examination, the Veteran's neurological condition was found to be grossly intact. Tenderness to palpation of the left paravertebral musculature was noted. Vertebral tenderness was negative, and strength, sensation, and circulation were all intact. The Veteran was assessed with muscle strain, and prescribed capsaicin cream and Tylenol. A March 2010 VA medical record indicated that the Veteran's back pain had returned to its baseline level following the recent exacerbation. An October 2010 VA medical record indicates that the Veteran's back had normal lordosis, no prominence of the paraspinal muscles, and no tenderness to palpation on the spine. Flexion of the back was noted as 12 inches from floor, and extension of the back was noted as limited. Straight leg raising on sitting was noted as negative. Deep tendon reflexes were symmetrical in the upper and lower extremities, and sensation and proprioception was noted as intact. The Veteran's gait was reported as normal, and his tandem walk was evaluated as good. A VA treatment record from May 2011 indicated that the Veteran complained of sharp, stabbing back pain. He reported that it affected his sleep, energy, physical activity, and mood. The Veteran was afforded a VA examination in May 2011. The Veteran reported limitation of his ability to walk due to his spine disability and bilateral leg pain; he said on average he can walk one quarter of a mile in approximately an hour. He also reported experiencing falls due to the disability. He said he had symptoms including stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. He also reported having weakness of the spine, leg, and foot. He complained of bowel problems related to his spine disability, specifically moderate fecal leakage occurring less than a third of the day; he said he did not require a pad. He reported not suffering from obstipation, but did complain of erectile dysfunction due to the spine disability, stating that he could not achieve and maintain an erection. He also indicated he experienced bladder problems, specifically urinary urgency, requiring him to urinate ten times a day at intervals of one hour, and two times per night at four hour intervals. He indicated he did not have incontinence or urinary retention. With respect to his back pain, the Veteran stated that it occurred in his lower back and was constant and severe. He reported that it traveled to his thighs, calf, knees, and ankles. He said physical activity could exacerbate the pain, and when experiencing pain he was unable to function with or without medication. He reported that when he experienced flare-ups he had functional impairment, described as pain and stiffness and limitation of the lower joint. The Veteran reported never being hospitalized for the spine disability, and said it had not required surgery. He also reported no incapacitating episodes in the past twelve months. Upon physical examination, the Veteran displayed normal gait and posture. The examination revealed no evidence of radiating pain on movement, and muscle spasm and guarding of movement were absent. Bilateral infrascapula tenderness was noted. The spinal contour was preserved, though tenderness was noted. The examiner found no ankylosis of the thoracolumbar spine. Range of motion testing revealed forward flexion of zero to 90 degrees, extension of zero to 30 degrees, left lateral flexion and rotation from zero to 30 degrees, an and right lateral flexion and rotation from zero to 30 degrees. The Veteran's combined range of motion of the thoracolumbar spine was 240 degrees. The examiner considered the DeLuca factors, noting that joint function of the spine was found to not be additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. DeLuca, 8 Vet. App. at 207-08. The neurological examination of the lumbar spine revealed no sensory deficits from L1-L5, and the examination of the sacral spine revealed no sensory deficits of S1. No lumbosacral motor weakness was found. Moreover, straight leg raising was negative on both sides, and there were no motor sensory impairments of the lower extremities noted. The left and right lower extremity reflexes revealed knee jerk and ankle jerk reflexes at 2+ (normal). The lower extremities showed no signs of pathologic reflexes, and the examination revealed normal cutaneous reflexes. The examiner reported that there were no signs of Lumbar Intervertebral Disc Syndrome with chronic and permanent nerve root involvement. He also indicated that there were no non-organic physical signs. There was also no indication of bowel or bladder dysfunction. The rectal examination yielded normal results, and sphincter control, rectal tonus, anal reflexes, and prostate condition were all within normal limits. The lumbar spine X-ray report indicated calcification of the anterior longitudinal ligament L1-2 and anterior lipping in the L5 with trace sclerosis of the facets. The examiner indicated that the L1-2 calcification appeared to be more associated with the anterior longitudinal ligament than on the AP study, which suggested the possibility of small osteophyte. The examiner also reported changes at L5 that represented some mild sclerosis and anterior lipping without definite osteophyte at that time. He also found mild facet sclerosis at L5-S1. Based on the above findings, the examiner revised the Veteran's established diagnosis of spasm of the paravertebral muscles, lumbar spine, to osteoarthritis of the lumbar spine with degenerative disc disease. He reported that the X-rays of the lumbar spine showed the development of osteoarthritis of the lumbar spine with degenerative disc disease, and explained this change was the result of a progression of the previous diagnosis. He indicated that the subjective factors were stiffness, fatigue, spasms, decreased motion, paresthesias, numbness, weakness, bowel complaints and bladder complaints. The objective factors were reported as infrascapular tenderness and pain at rest with normal range of motion noted on the physical examination. The examiner added that the effect of the Veteran's disability on his usual occupation was partial impairment of physical activities of employment. The effect on the Veteran's daily activities of living was also noted as partial impairment of physical activities. Based on a review of all of the evidence, the Board finds that an evaluation in excess of 20 percent is not warranted. As stated above, the higher, 40 percent evaluation requires limitation of motion to 30 degrees or less. The sole objective evaluation of the Veteran's limitation of motion is on examination in May 2011. At that time, the Veteran had full, painless flexion to 90 degrees. The Board acknowledges that the October 2010 VA treatment record noted that the Veteran's back had a restricted range of motion. However, that treatment record did not address the rating criteria, and did not include range of motion test results in degrees. Furthermore, as the Veteran has consistently demonstrated the ability to flex, bend, laterally flex, and rotate his thoracolumbar spine, there is no showing of ankylosis, which occurs when a joint is fixed in place. The Veteran also provided statements regarding his disability outside of medical records. A statement written by D.J. received in July 2011 indicated that he witnessed the Veteran having trouble moving up and down. D.J. reported seeing the Veteran holding his back and showing pain on his face. D.J. also wrote that the Veteran complained of pain from lifting. A statement from the Veteran received in July 2011 indicated that the pain he experienced was constant, and that at times it was so intense he was unable to sleep. He also wrote that he was unable to exercise because of his back disability. He added that he purchased a swivel cushion for getting in and out of the car, and a therapeutic spinal alignment pillow for sitting to help ease and deal with his pain. The Board acknowledges the lay statements and reported symptomatology regarding the Veteran's service-connected osteoarthritis of the lumbar spine with degenerative disc disease. The Veteran, and his friend D.J., are competent to report such symptoms because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while these lay statements were considered, the Board finds the clinical medical evidence of record to be of far greater probative value as the Veteran was able to exhibit full range of motion without pain on movement during the May 2011 examination. An evaluation in excess of the currently assigned 20 percent rating is therefore not warranted in this case, even when considering the DeLuca factors, as the service-connected osteoarthritis of the lumbar spine with degenerative disc disease did not exhibit the requisite limitation of motion. As discussed above, the May 2011 examination report indicated that the Veteran did not exhibit pain following repetitive motion, and there were no additional limitations upon repetitive range of motion. The preponderance of the evidence is also against assigning a schedular rating higher than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The May 2011 examination indicated that the Veteran did not experience any incapacitating episodes in the past twelve months. There is also no evidence in the record that the Veteran had ever required bed rest, as prescribed by a physician. Additionally, the evidence of record is against a finding that the Veteran's osteoarthritis of the lumbar spine with degenerative disc disease resulted in any neurological abnormality, including, but not limited to, radiculopathy, or bowel or bladder impairment. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1) (2013). As noted above, the May 2011 examination revealed no sensory deficits from L1-L5, and the examination of the sacral spine revealed no sensory deficits of S1. No lumbosacral motor weakness was found. The left and right lower extremity reflexes were normal. The lower extremities showed no signs of pathologic reflexes, and the examination revealed normal cutaneous reflexes. The examiner also indicated that there were no non-organic physical signs. Moreover, the rectal examination yielded normal results, and sphincter control, rectal tonus, anal reflexes, and prostate were all within normal limits. While the Board has considered the Veteran's reports of neurological symptoms giving during his May 2011 examination, including reports of radiating pain and bowel and bladder issues, the Board finds the clinical findings noted above to be of far greater probative value as they were based on a thorough, objective examination of the Veteran. Thus, the Board finds that the evidence of record does not demonstrate objective neurological impairment associated with the service-connected osteoarthritis of the lumbar spine with degenerative disc disease, and a separate evaluation based on neurological impairment is not warranted. With respect to a rating under Diagnostic Code 5003, the lumbar vertebrae are considered a group of minor joints that is ratable on parity with a major joint. 38 C.F.R. § 4.45 (2013). Diagnostic Code 5003 allows for the assignment of a 20 percent rating only where there is X-ray evidence of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. A 10 percent rating is permitted where there is X-ray evidence of arthritis of 2 or more major joints or 2 or more minor joint groups. The lumbar spine may only be rated as one major joint, and the Veteran is only service-connected for the osteoarthritis of his lumbar spine. Accordingly, the evidence does not support a compensable rating for the service-connected osteoarthritis of the lumbar spine under Diagnostic Code 5003. 38 C.F.R. § 4.71a (2013). Extraschedular Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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. 38 C.F.R. § 3.321(b)(1) (2013); see also, 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 that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 the 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 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 osteoarthritis of the lumbar spine is inadequate. A comparison between the level of severity and symptomatology of the Veteran's osteoarthritis of the lumbar spine with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran has full, pain-free range of motion of the thoracolumbar spine on objective examination. The current 20 percent rating contemplates the combined range of motion of the thoracolumbar spine not greater than 120 degrees, as well as pain, aching, and stiffness. Thus, the Veteran's current schedular rating under Diagnostic Code 5242 is adequate to fully compensate him for his disability on appeal. Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (the Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, 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. The Board acknowledges that the May 2011 examination indicated that the Veteran's disability resulted in partial impairment of physical activities of employment. However, the Veteran has not specifically argued, and the record does not otherwise reflect, that his disability renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 20 percent for osteoarthritis of the lumbar spine with degenerative disc disease is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs