Citation Nr: 1337562 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-32 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease at L4-5 and L5-S1, prior to September 18, 2008. 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease at L4-5 and L5-S1, from September 18, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1985 to January 2006 with two years and seven months of prior active service. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which in part, granted service connection for degenerative disk disease at L4-L5 and L5-S1 and assigned a 10 percent disability evaluation, effective February 1, 2006. Original jurisdiction over this matter was subsequently transferred to the RO in Chicago, Illinois. The Veteran perfected an appeal of the assigned initial disability rating for the lumbar spine disability. During the pendency of this appeal, a December 2009 rating decision granted a higher 20 percent disability evaluation for the service-connected lumbar spine disability, effective September 18, 2008. Since the RO did not assign the maximum disability rating possible and the Veteran has not expressed satisfaction with the higher disability rating awarded, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In December 2012, the Board remanded this matter for further development, to include affording the Veteran a new VA examination of his low back disability and readjudicating the Veteran's claim for a higher disability rating. The Board is satisfied that the directed development has been performed, and is prepared to proceed with its de novo consideration of the issues on appeal. As a final preliminary matter, the Board notes that the Veteran had previously requested a hearing before the Board, but subsequently withdrew that request in an October 2008 statement. Neither the Veteran nor his representative has made a renewed request for a hearing. Under these circumstances, the Veteran is deemed to have withdrawn his hearing request. 38 C.F.R. § 20.704 (2012). FINDINGS OF FACT 1. Prior to September 18, 2008, the Veteran's L4-5 and L5-S1 degenerative disc disease was manifested primarily by pain and loss of thoracolumbar motion which included flexion to 75 degrees and combined thoracolumbar motion to 180 degrees; however, was not manifested by any ankylosis, intervertebral disc syndrome, or physician-prescribed bed rest. 2. From September 18, 2008, the Veteran's L4-5 and L5-S1 degenerative disc disease was manifested by pain and loss of thoracolumbar motion; however, the evidence does not show that the extent of lost thoracolumbar motion warranted a higher disability rating, nor does it show that the Veteran's lumbar spine disability was manifested by intervertebral disc syndrome or physician-prescribed bed rest. 3. For all periods relevant to this appeal, the Veteran's L4-5 and L5-S1 degenerative disc disease did not result in any neurological manifestations. CONCLUSIONS OF LAW 1. For the period prior to September 18, 2008, the criteria for an initial disability rating in excess of 10 percent for degenerative disc disease at L4-5 and L5-S1 have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5242 (2013). 2. For the period from September 18, 2008, the criteria for an initial disability rating in excess of 20 percent for degenerative disc disease at L4-5 and L5-S1 have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the Veteran's claims of entitlement to higher initial disability ratings for degenerative disc disease at L4-5 and L5-S1, the Board notes that these issues arise from the RO's initial grant of service connection. In an August 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence were needed to substantiate his claim for service connection for a low back disorder, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The Veteran's claim for service connection for a low back disorder was subsequently adjudicated for the first time in the February 2006 rating decision. Subsequently, a November 2006 letter notified the Veteran as to the process by which disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. After this letter was issued, the Veteran was given an opportunity to respond before his appeal for a higher initial disability rating for degenerative disc disease at L4-5 and L5-S1 was readjudicated in a September 2008 Statement of the Case. Hence, although full notice in accordance with the VCAA and Dingess was untimely, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Subject to the foregoing, the Board also notes that, in Dingess, the Court also determined that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has not only been substantiated, but proven. Thus, in such instances, section 5103(a) notice was no longer required because the purpose that the notice is intended to serve has already been served. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (stating that section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify the Veteran in connection with his initial disability rating and earlier effective date claims has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records and lay statements describing the symptoms associated with his low back disability have been associated with the claims file. As discussed above, an August 2005 letter notified the Veteran as to the information and evidence necessary for substantiating his claim, as well as the respective responsibilities of the Veteran and VA in providing and obtaining such information and evidence. In that regard, the Veteran was provided a VA Form 21-4142 release and was asked to identify on the release his health care providers. The Veteran subsequently returned the release to VA, noting only that all treatment was documented in his service treatment records. Hence, the Veteran did not identify any post-service VA or private treatment pertinent to his back disability; nor has he provided any updated information of any treatment since that time. VA examinations to assess the nature and severity of the Veteran's low back disability were performed in September 2005, September 2008, and March 2012. The Board finds that these examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's low back disability in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Disability Ratings for Degenerative Disc Disease Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, 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. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. For all periods relevant to this appeal, the Veteran's degenerative disc disease has been rated according to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. The criteria for rating spine disabilities are expressed under DCs 5235 through 5242. Regardless of which criteria between DC 5235 through 5242 that the RO selects, disabilities characterized under those diagnostic codes are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, a 10 percent disability rating is assigned where the evidence shows forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; 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 disability rating is assigned where the evidence demonstrates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 disability rating is in order where the evidence demonstrates forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is appropriate for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating contemplates unfavorable ankylosis of the entire spine. For VA compensation purposes, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine consists of flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of thoracolumbar motion is 240 degrees. Disabilities of the musculoskeletal system, such as spine disabilities, are primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by 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. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Board has considered whether further "staged" disability ratings are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for further staged disability ratings for the Veteran's lumbar spine disability. A. Rating Prior to September 18, 2008 The only evidence pertinent to the Veteran's low back disability for the appeal period prior to September 18, 2008 is a September 2005 VA examination that was performed before his separation from service. During the September 2005 examination, the Veteran reported a history of longstanding back pain that began in 1984 and had gradually progressed over the years. In describing his symptoms, he reported constant low back pain that was worse at night and which radiated into both knees. Functionally, he stated that he was able to sit or stand for up to half an hour before experiencing an increase in pain. He stated that he was unable to remain seated in one position for long periods and that he had to sit in a slouched position. He reported that previous examinations over the past year revealed degenerative disc disease at L4-5 and L5-S1 and that surgery was not recommended. He stated that he was able to continue running and other physical fitness testing, but stated that he had been unable to participate in any sports over the last two days due to increased pain. The examiner observed that the Veteran's back "move[d] easily," during physical examination. The Veteran demonstrated normal mid-thoracic kyphosis and lumbar lordosis. Demonstrated thoracolumbar motion included flexion to 75 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. No pain was noted during any demonstrated motion. Repetitive motion was productive of lack of endurance and mild restriction of motion; however, the extent of further lost motion after repetition was not reported. The examiner noted that there was no evidence of palpable spasm and no local tenderness over the thoracic or lumbar muscles. Straight leg raising was negative. Reflexes in the lower extremities were positive and without any demonstrated weakness. The examiner noted further that there was no evidence of paresthesias or numbness in the lower extremities and no evidence of radiculopathy. A June 2003 thoracolumbar MRI was reviewed and interpreted as showing a congenital partial sacralization at L5 with associated loss of disc space. After careful consideration of the evidence, the Board finds that the Veteran is not entitled to an initial disability rating higher than 10 percent for L4-5 and L5-S1 degenerative disc disease for the period before September 18, 2008. In that regard, the relevant evidence shows that the Veteran's lumbar spine degenerative joint disease and degenerative disc disease were manifested by chronic pain that was exacerbated by remaining in the same position for prolonged periods. Demonstrated thoracolumbar flexion during the appeal period at issue was to 75 degrees without any reported pain. Combined thoracolumbar motion was to 180 degrees. To the extent that repetitive motion was productive of functional loss, there is no indication in the record that such functional loss resulted in further loss of motion. In view of the extent of thoracolumbar motion shown by the Veteran during the appeal period before September 18, 2008, the disability picture shown in the evidence is not consistent with the degree of loss of motion contemplated for a higher 20 percent disability rating (in this case, limitation of thoracolumbar flexion to 60 degrees or less, or combined thoracolumbar motion no greater than 120 degrees). See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5235-42. Accordingly, the criteria for a disability rating in excess of 10 percent, pursuant to the criteria under the General Formula, have not been met. The Board notes that additional spine rating criteria are available under DC 5243 and the Formula for Rating Intervertebral Disc Syndrome (IVDS) on the basis of incapacitating episodes (Formula for Rating IVDS). Effective from September 26, 2003, these criteria provides for the assignment of disability ratings on the basis of the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS, a 20 percent rating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Notwithstanding the foregoing provisions for IVDS, the evidence does not show any intervertebral disc involvement during the staged period at issue. Moreover, there is no evidence that the Veteran experienced any periods of incapacitation characterized by physician-prescribed bed rest. Accordingly, the Veteran is not entitled to a higher disability rating under DC 5243 and the Formula for Rating IVDS. Although the Veteran has not expressly urged the application of any specific rating criteria, the Board has also considered the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes that there are no other rating criteria that are applicable to the Veteran's lumbar spine disability. Overall, where the evidence shows that the Veteran's lumbar spine degenerative joint disease and degenerative disc disease was manifested primarily by pain, thoracolumbar flexion to no less than 75 degrees, and combined thoracolumbar motion to no less than 180 degrees, the Veteran is entitled to an initial disability rating of 10 percent, and no more, for the period before September 18, 2008. To that extent, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. B. From September 18, 2008 As noted above, the Veteran was awarded a higher 20 percent disability rating for L4-5 and L5-S1 degenerative disc disease, effective September 18, 2008. The basis for this higher rating was the findings and opinions noted during a September 2008 VA examination. During that examination, the Veteran reported worsening back pain with inability to remain in one position for more than 15 to 20 minutes. He stated that he was able to sleep for four hours before waking with back pain which required him to get up every hour before leaving for work. He also endorsed flare-ups which occurred weekly and lasted for periods of up to three to five days. These periodic flare-ups were usually followed by noted improvement which lasted for up to two days. The Veteran apparently continued to deny receiving any professional medical treatment and stated that he was managing his symptoms with Motrin, whirlpools, hot packs, and by changing positions. During physical examination of the spine, the Veteran walked slowly and demonstrated mild kyphosis in the thoracic spine. Total loss of lordosis was seen in the lumbar spine and the lumbar spine remained in a mildly flexed position. Diffuse tenderness and mild spasm was also seen throughout the lumbar paravertebral muscles and thoracic spine. Demonstrated thoracolumbar motion included flexion to 45 degrees, total absence of extension, lateral flexion to 10 degrees bilaterally, and lateral rotation to 10 degrees bilaterally. All demonstrated motion was accompanied by complaints of moderate pain and weakness throughout motion. Once again, repetitive motion was productive of marked lack of endurance and mild lack of coordination which resulted in "significant restriction." Nonetheless, specific loss of motion after repetition was again not reported. X-rays of the thoracolumbar spine were taken and interpreted as showing marked facet arthritis at L4-5 and L5-S1 with marked narrowing of disc spaces. Neurologically, the examiner noted that straight leg raising tests remained negative and that reflexes were also positive bilaterally without any noted weakness. The Veteran's overall function was described by the examiner as being "minimal." The examiner determined that the Veteran was unfit for any lifting or bending activities and that he was confined to a desk job at that time. VA treatment records dated May 2009 indicate that the Veteran sought evaluation for his low back complaints. An MRI performed at that time revealed degenerative disc disease and facet changes resulting in foraminal stenosis at L3-4 and L4-5. No significant central canal stenosis was seen. During a March 2012 VA examination, the Veteran reported ongoing back pain, loss of mobility marked by inability to reach or bend, inability to sit or stand for long periods, and decreased sleep of four or five hours per night due to pain. He stated that pain symptoms radiated into his buttocks and the backs of his thighs. Functionally, the Veteran reported that he was unable to drive and that reported symptoms were aggravated by using his back for long periods of time. He denied having any history of hospitalization and receiving any current treatment for his back other than application of heat and cold. Demonstrated thoracolumbar motion during the examination included flexion to 80 degrees with pain reported at the end of motion, extension to 25 degrees (reflecting loss of five degrees of extension) with pain reported at the end of motion, right lateral flexion to 20 degrees with pain reported from 10 degrees, full left lateral flexion to 30 degrees with pain reported at the end of motion, and full lateral rotation to 30 degrees bilaterally without any reported pain. Repetitive motion did not result in any functional loss marked by further loss of motion in any direction. A neurological examination was within normal limits and did not indicate the presence of any radiculopathy. The examiner opined that there was no evidence of intervertebral disc syndrome, abnormal spine contour, guarding, or spasm. Functionally, the examiner did not note any restrictions other than the fact that the Veteran required assistance in putting on his socks and the Veteran's reported inability to drive. Overall, the examiner opined that the Veteran was "OK" with activities of daily living. Occupationally, the Veteran reported that he had been working for the past six years as a maintenance manager. The examiner opined further that the Veteran remained capable of performing such work, although he remained unable to perform heavy work. Upon review and consideration of the foregoing evidence, the Board finds that the Veteran is not entitled to a disability rating higher than 20 percent for L4-5 and L5-S1 degenerative disc disease, for the period from September 18, 2008. Subject to the rating criteria under the General Formula, although the evidence does indicate that the Veteran's lumbar spine disability was productive of some loss of thoracolumbar motion, there is no evidence that shows that thoracolumbar motion was limited to the extent contemplated for a disability rating higher than 20 percent under the General Formula (limitation of thoracolumbar flexion to 30 degrees or less, or ankylosis). Again, although findings from the September 2008 VA examination suggest some functional loss after repetitive motion, there is no indication that such functional loss resulted in further loss of motion. Indeed, repetitive motion testing performed during the subsequent March 2012 VA examination expressly indicated the absence of any functional loss or further loss of motion after repetitive motion testing. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5235-42. Under the circumstances, the evidence shows that a disability rating higher than 20 percent may also not be awarded on the basis of diminished thoracolumbar motion for the period from September 18, 2008. The evidence for the staged period from September 18, 2008 also does not reflect any findings of intervertebral disc involvement. Moreover, there is no indication in the relevant records that the Veteran experienced any periods of incapacitation characterized by physician-prescribed bed rest. Again, for the period from March 16, 2007 through February 9, 2009, the Board has considered the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes again that there are no other rating criteria that are applicable to the Veteran's lumbar spine disability for the staged period at issue. Overall, the Veteran is not entitled to an initial disability rating in excess of 20 percent for L4-5 and L5-S1 degenerative disc disease for the period from September 18, 2008. To that extent, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. C. Neurological Manifestations The Board has also considered whether separate ratings are warranted based on neurological manifestations attributable to the Veteran's lumbar spine disability. In that regard, and as noted above, the September 2005 and March 2012 VA examinations reflect subjectively reported complaints by the Veteran of radiating pain into his lower extremities. Despite these reported complaints, the September 2005 examination report notes that despite pain radiating to the knees, there was no numbness or paresthesias in the lower extremities with no evidence of radiculopathy. Likewise, a neurological examination performed during the March 2012 VA examination was normal and not indicative of radiculopathy associated with the Veteran's low back disability. Based upon the foregoing evidence, the Board finds that separate disability ratings for neurological manifestations of the Veteran's lumbar spine degenerative disc disease are not warranted in this case. As noted above, the medical evidence has shown normal objective neurological findings which are not indicative of a radiculopathy in either lower extremity. The only evidence in the record which even suggests a relationship between the Veteran's lower extremity complaints and his lumbar spine disability are the Veteran's own assertions in that regard. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). In view of the foregoing law, the Veteran is competent to report his symptoms and to provide probative statements as to when the symptoms in his lower extremities began and how long they have continued. Nonetheless, the presence of pain in the Veteran's lower extremities may be explained by any one of numerous potential causes that are unrelated to the Veteran's lumbar spine disability. To the extent that the Veteran's statements and reported symptoms may be construed as asserting neurological manifestations attributable to his lumbar spine disability, and as the Veteran is not competent to render an opinion as to the complex question of the nature and cause of the symptoms in his lower extremities, the Board finds that the Veteran's assertions in that regard are entitled to little probative value. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For this reason, the Board assigns far greater probative weight to the objective findings and opinions rendered in the VA examination reports. Accordingly, separate disability ratings for radiculopathies in either lower extremity are not warranted in this case. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's assertions of radiculopathy. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). D. Additional Considerations In considering the applicability of the other various provisions of Title 38 Code of Federal Regulations, the Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1) , which govern the assignment of extra-schedular disability ratings. However, in this case, the Board finds that the record does not show that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. §3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that renders inadequate the available schedular ratings for the Veteran's lumbar spine disability. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the disability level and symptomatology that are attributable to the Veteran's lumbar spine degenerative joint disease and degenerative disc disease. As discussed above, higher ratings are available under potentially applicable diagnostic codes; however, the Veteran's disability has not been productive of the manifestations necessary to warrant higher ratings. Although the Veteran's primary symptom appears to be pain with loss of thoracolumbar motion, such manifestations have already been contemplated by the assigned disability rating. In the absence of any objective evidence of further loss of motion or functional loss, a higher disability rating is not warranted. Moreover, the Veteran's disability has not required hospitalization or surgical intervention. Occupationally, the Veteran has reported ongoing employment as a maintenance manager, and, the evidence does not indicate that he is unable to perform the functions associated with this position. Functionally, the September 2008 VA examination's findings do suggest a severe degree of functional loss. Nonetheless, the Board also notes that the previous September 2005 examination and the subsequent March 2012 examination both indicate that, to the contrary, the Veteran was able to perform his activities of daily living. In view of this evidence, the functional findings noted in the September 2008 VA examination report appear to be anomalous and not an accurate reflection of the Veteran's general functioning at any time during the appeal period. In view of the foregoing, it cannot be said that the available schedular ratings are inadequate for rating the Veteran's disability. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected L4-5 and L5-S1 degenerative disc disease, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. 111. ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease at L4-5 and L5-S1, prior to September 18, 2008, is denied. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease at L4-5 and L5-S1, from September 18, 2008, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs