Citation Nr: 1337623 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-24 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbar degenerative disc disease with bulging discs prior to June 4, 2013; and in excess of 40 percent from June 4, 2013. 2. Entitlement to a disability rating in excess of 10 percent for chronic gastritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to September 1975 and from April 1981 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in San Juan, the Commonwealth of Puerto Rico. In July 2013, the RO granted an increase to 40 percent for lumbar degenerative disc disease with bulging discs, effective June 4, 2013. Because the increased disability rating assigned is not the maximum rating available for this disability, the claim remains in appellate status, and the Board has re-characterized the issue to include staged ratings as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The issues of entitlement to service connection for bilateral shoulder disability, radiculopathy of bilateral upper extremities, bilateral knee disability, depression, and anxiety have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Prior to June 4, 2013, the Veteran's lumbar degenerative disc disease with bulging discs was manifested by pain, spasms, tenderness, slight limitation of forward flexion, and reversed lordosis. 2. On and after June 4, 2013, the Veteran's lumbar degenerative disc disease with bulging discs was primarily manifested by pain and forward flexion limited to 30 degrees. 3. Throughout the pendency of the appeal, the Veteran's chronic gastritis was manifested by continuous abdominal pain, nausea, diarrhea, constipation, and a small nodular lesion. CONCLUSIONS OF LAW 1. Prior to June 4, 2013, the criteria for a disability rating in excess of 20 percent for lumbar degenerative disc disease with bulging discs have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5239 (2013). 2. On and after June 4, 2013, the criteria for a disability rating in excess of 40 percent for lumbar degenerative disc disease with bulging discs have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5239. 3. The criteria for a disability rating in excess of 10 percent for chronic gastritis have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.114, Diagnostic Code 7307 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The information contained in an August 2008 letter satisfied the duty to notify provisions. 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 Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The August 2008 letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disabilities, the different types of evidence available to substantiate his claims for higher ratings, the need to submit evidence of how such worsening affected his employment, and the requirements to obtain higher ratings. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (Fed. Cir. 2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met, and, thus, no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Veteran's service treatment records, VA treatment records, VA examination reports, and identified private treatment records have been obtained. In April 2013, the Board remanded the Veteran's claims for additional development. Specifically, the Board requested that RO obtain all VA treatment records from the VA Medical Center in San Juan, the Commonwealth of Puerto Rico and any associated outpatient clinic, to include the Ponce Outpatient Clinic, dated from July 2008 to the present. The evidence includes VA treatment records dated through April 2013. In addition, the Board directed that the RO schedule the Veteran for VA examinations to determine the current level of severity of his service-connected disabilities. The Veteran underwent VA examinations in conjunction with his claims in May 2013 and June 2013. The VA examiners reviewed the pertinent evidence of record and the Veteran's lay statements. Additionally, the examinations provided sufficient information to decide the issues on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the examinations to be sufficient and adequate for rating purposes. Furthermore, the record shows the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Lumbar degenerative disc disease with bulging discs Disability of the musculoskeletal system is 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 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 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, 4.45 (2013); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement. Id.; 38 C.F.R. § 4.45. The general rating formula for diseases and injuries of the spine (General Rating Formula) provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability is rated under 5243 and considered under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for diseases and injuries of the spine, 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. Under the General Rating Formula, a 20 percent rating is assigned for forward flexion greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also 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 are zero to 30 degrees, and left and right lateral rotation are 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 (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. As noted above, intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2013). Prior to June 4, 2013 A September 2007 physical therapy note shows the Veteran had mild tenderness to palpation. He walked unassisted with a normal gait. A December 2007 CT scan revealed degenerative discogenic and spondylotic disease of the lower lumbar spine, worse at the L5/S1. VA treatment records dated in August 2007, February 2008, and July 2008 indicate range of motion was intact, muscle tone was adequate, and there were no deformities. In February 2008, the Veteran denied swelling, redness, increased temperature, stiffness, back pain, and decreased range of motion. In September 2008, the Veteran underwent VA examination in conjunction with his claim. The Veteran reported a history of a fall due to low back pain and low back pain with radiation to the legs associated with muscle spasms. The Veteran also reported difficulty standing up upon crossing his legs. He also described locking episodes in which he needed his wife to straighten him up. There was a history of urinary urgency and frequency and nocturia but no history of urinary retention requiring catheterization, fecal incontinence, erectile dysfunction, or numbness. There was a history of paresthesias, leg or foot weakness, falls, and unsteadiness. The Veteran also had a history of fatigue, decreased motion, stiffness, weakness, spasms, and severe, constant daily pain in the low back area. There was also electric radiating pain to the legs. The Veteran reported severe flare-ups that occurred every two to three weeks and lasted from three to seven days. The Veteran reported that during flare-ups he was unable to do anything. The record showed no medical certificates issued for strict bed rest during the last year due to acute intervertebral disc syndrome. The Veteran wore a brace and could walk for 10 minutes. Physical examination revealed spasms, pain with motion, and tenderness on the left and right sides. There was no atrophy, guarding, or weakness. There was muscle spasm or localized tenderness severe enough to be responsible for an abnormal gait or abnormal spinal contour. The Veteran's gait was normal, and there was no evidence of gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, or scoliosis. There was reversed lordosis. There was no muscle atrophy. The lower extremities revealed non-radicular diminished pinprick and smooth sensation. There was no thoracolumbar spine ankylosis. Range of motion and DeLuca maneuvers were not performed because the Veteran suffered from chronic ischemic heart disease and became dizzy and almost fell. No imaging studies were performed. The VA examiner diagnosed lumbar degenerative disc disease with bulging discs and found the Veteran's disability prevented chores, shopping, sports, and recreation. His disability moderately affected dressing and toileting, severely affected exercise, traveling, grooming, and bathing, and did not affect feeding. A July 2009 VA treatment record indicates the Veteran had good lumbosacral range of motion with slight limitation of forward flexion. He had a normal gait and station and no paraspinal spasms. A September 2009 physical therapy note shows the Veteran had constant low back pain and a deviated posture with forward head. Range of motion was full except for internal shoulder rotation. Muscle strength and tone were normal. Coordination was normal, and there was tenderness and spasm. The Veteran could tolerate sitting and standing for five minutes respectively, and he walked independently. In November 2009, physical examination revealed that the Veteran ambulated with a straight cane and had a normal gait pattern without the cane. He used a lumbosacral corset. There were no paraspinal spasms, and there was good range of motion of the spine with complaints of pain. The impression was chronic low back pain with small disc protrusion L4-5 and disc bulges. A January 2010 VA treatment record indicates the Veteran had chronic low back pain worse at extension and suggestive of facet joint syndrome. There were no focal deficits identified. The record indicates the Veteran underwent a spinal facet nerve block in February 2010. An August 2010 magnetic resonance imaging scan (MRI) reflected straightening of the lumbar lordosis, and there were also mild degenerative changes in the lower lumbar spine. A December 2010 VA treatment record shows the Veteran reported intermittent, sharp pain that began in July 2009 and impaired mobility. An April 2013 record indicates the Veteran had chronic lower back pain. X-ray examination in May 2013 revealed mild spondylosis. Prior to June 4, 2013, the Veteran's lumbar degenerative disc disease with bulging discs is rated as 20 percent disabling. For a 40 percent disability rating under Diagnostic Code 5239, the evidence must show functional impairment comparable to forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. In addition, an increased rating of 40 percent is provided for under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Here, the medical evidence does not demonstrate functional impairment comparable to forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. According to VA treatment records, the Veteran's range of motion was intact in August 2007, February 2008, and July 2008. In February 2008, the Veteran denied decreased range of motion, and the September 2008 VA examiner determined that there was no thoracolumbar spine ankylosis. In addition, the July 2009 VA treatment record indicates the Veteran had good lumbosacral range of motion with slight limitation of forward flexion. In this respect, the Board finds that the finding of a slight limitation of forward flexion does not indicate functional impairment comparable to forward flexion to 30 degrees or less, particularly in light of the other evidence demonstrating good range of motion during this period. Significantly, examinations dated two months and four months later revealed full range of motion except for internal shoulder rotation and good range of motion of the spine, respectively. Further, the record does not demonstrate any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician prior to June 4, 2013. Additionally, the September 2008 VA examiner reported that the record did not show any medical certificates issued for strict bed rest during the last year due to acute intervertebral disc syndrome. 38 C.F.R. § 4.71a, General Rating Formula. With respect to other neurological symptoms, in September 2008 the Veteran reported a history of urinary urgency, urinary frequency, and nocturia. However, the medical evidence does not demonstrate complaints of or treatment for such symptoms, and there is no indication that these symptoms are related to the Veteran's service-connected back disability. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Board has also considered whether the Veteran's lumbar degenerative disc disease with bulging discs resulted in a level of functional loss greater than that already contemplated by the assigned rating for this period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In September 2008, the Veteran reported a history of fatigue, decreased motion, stiffness, weakness, and spasms. In addition, he stated that he experienced flare-ups every two to three weeks during which he was unable to do anything. However, the Board finds these reports somewhat inconsistent with the other medical evidence showing the Veteran denied stiffness and decreased range of motion during this period. In addition, the Board notes that the September 2008 VA examiner found the Veteran's disability prevented chores, shopping, sports, and recreation, and that his disability moderately affected dressing and toileting, severely affected exercise, traveling, grooming, and bathing, and did not affect feeding. However, upon review, the Board finds this impairment does not rise to the level of functional loss greater than that already contemplated in the disability rating assigned. Here, the evidence does not demonstrate a history of incapacitating episodes requiring bed rest, and throughout the period, the Veteran's muscle strength and tone, gait, and coordination were normal. Furthermore, range of motion was, at worst, found to involve a slight limitation of forward flexion. This issue has also been reviewed with consideration of whether staged ratings would be warranted within this period. However, the evidence does not show that a rating in excess of 20 percent would be warranted for the Veteran's service-connected lumbar degenerative disc disease with bulging discs at any time. 38 U.S.C.A. § 5110 (West 2002); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also recognizes the lay statements of record attesting to the Veteran's symptoms of constant pain and the effects of that pain on his daily life. The Board notes that lay persons can attest to observable symptomatology, and the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, these statements must be viewed in conjunction with the objective medical evidence as required by the rating criteria. During this period, the Veteran primarily reported constant low back pain, tenderness, and spasms. Here, the Board finds the objective medical evidence demonstrates consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. Consequently, when considering the overall evidence during this period, including the lay statements and medical evidence, the Board finds that the Veteran's service-connected lumbar degenerative disc disease with bulging discs does not warrant an evaluation in excess of 20 percent during this period. 38 C.F.R. § 4.71a, Diagnostic Code 5239. As a result, the Board finds the evidence does not support the criteria for a disability rating in excess of 20 percent for lumbar degenerative disc disease with bulging discs prior to June 4, 2013. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against an evaluation in excess of that already assigned for this period, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On and after June 4, 2013 The Veteran underwent additional VA examination in June 2013. The VA examiner diagnosed lumbar spondylolisthesis. The Veteran reported flare-ups that impacted the functioning of the thoracolumbar spine and affected stooping, prolonged standing, and ambulation. Forward flexion was to 30 degrees, with pain beginning at five degrees; extension was to 20 degrees, with pain beginning at five degrees; right lateral flexion and left lateral flexion were to 20 degrees, with pain beginning at five degrees; right lateral rotation was to 20 degrees, with pain beginning at five degrees; and left lateral rotation was to 15 degrees, with pain beginning at five degrees. After repetitive-use testing, forward flexion was to 30 degrees, extension was to 15 degrees, right and left lateral flexion were to 20 degrees, right lateral rotation was to 20 degrees, and left lateral rotation was to 15 degrees. The VA examiner reported that the Veteran had additional limitation in range of motion following repetitive-use testing due to less movement than normal and pain on movement. The Veteran also had symptoms of localized tenderness or pain to palpation for joints and/or soft tissue and guarding or muscle spasm of the thoracolumbar spine that did not result in abnormal gait or spinal contour. The Veteran had normal muscle strength and no muscle atrophy. The VA examiner reported that the Veteran had a neuropathy pattern but not a radicular pattern, and he did not have any other neurologic abnormalities related to his back condition. The VA examiner also found the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The Veteran did use a brace. There was not functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. There was documentation of arthritis but no vertebral fracture. The VA examiner found the Veteran's back condition impacted his ability to work as it caused standing and ambulation limitations. On and after June 4, 2013, the Veteran's lumbar degenerative disc disease with bulging discs is rated as 40 percent disabling. For a 50 percent rating under Diagnostic Code 5239, the evidence must show functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine, and for a 100 percent rating, there must be functional impairment comparable to unfavorable ankylosis of the entire spine. In addition, an increased rating of 60 percent is provided for under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Here, the medical evidence of record does not demonstrate functional impairment comparable to unfavorable ankylosis of the entire thoracolumbar spine or the entire spine on and after June 4, 2013. On VA examination, forward flexion was to 30 degrees; extension was to 20 degrees; right lateral flexion and left lateral flexion were to 20 degrees; right lateral rotation was to 20 degrees; and left lateral rotation was to 15 degrees. As a result, the medical evidence does not demonstrate the Veteran's back was in a fixed position comparable to ankylosis. In addition, the evidence does not demonstrate that the Veteran's back disability resulted in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. As such, the Board finds a disability rating in excess of 40 percent under Diagnostic Code 5239 is not warranted. Furthermore, the June 2013 VA examiner reported that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. Therefore, an evaluation in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. With respect to other neurological symptoms, the record does not show that the Veteran had any bowel or bladder problems or any other objective neurologic abnormalities associated with his service-connected back disability on and after June 4, 2013. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Again, the Board has considered whether the Veteran's service-connected lumbar degenerative disc disease with bulging discs resulted in a level of functional loss greater than that already contemplated by the assigned rating. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In June 2013, the Veteran reported flare-ups that impacted the functioning of his thoracolumbar spine, to include stooping, prolonged standing, and ambulation. However, the VA examiner found the Veteran's functional impairment was due to less movement than normal and pain on movement. There were no signs of weakened movement, excess fatigability, or incoordination. Upon review, the Board finds these symptoms and corresponding functional impairment are already contemplated in the 40 percent disability rating assigned. Additionally, this issue has been reviewed with consideration of whether staged ratings would be warranted at any time on and after June 4, 2013. However, the evidence does not show that a rating in excess of 40 percent would be warranted for the Veteran's service-connected lumbar degenerative disc disease with bulging discs at any time during this period. 38 U.S.C.A. § 5110; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also recognizes the Veteran's lay statements describing his symptoms and their effects on his daily life on and after June 4, 2013. The Veteran reported flare-ups and pain. In this respect, the objective medical evidence demonstrates consideration of the Veteran's statements and the information necessary to rate the Veteran's disability under the rating criteria. As a result, the Board finds the evidence does not support the criteria for a disability rating in excess of 40 percent for lumbar degenerative disc disease with bulging discs on and after June 4, 2013. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against evaluation in excess of that already assigned, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. In this case, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the ratings assigned herein inadequate. The Veteran's service-connected lumbar degenerative disc disease with bulging discs is evaluated as a disability of the musculoskeletal system, the criteria of which is found by the Board to specifically contemplate the level of impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.71a, Diagnostic Code 5239. Throughout the periods on appeal, the Veteran's service-connected back disability was manifested by chronic pain, tenderness, spasms, and limited range of motion. As these symptoms are contemplated in the diagnostic code criteria for assignment of a schedular rating, the Board finds the Veteran is not entitled to referral for extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Chronic Gastritis The Veteran's chronic gastritis is currently rated as 10 percent disabling throughout the pendency of the appeal under Diagnostic Code 7307, which provides the rating criteria for hypertrophic gastritis. Under Diagnostic Code 7307, a 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. A 60 percent rating is warranted for chronic gastritis with severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114, Diagnostic Code 7307. In September 2008, the Veteran underwent VA examination in connection with his claim. The record indicates the Veteran's symptoms had progressively worsened since onset and that current medical treatments included proton pump inhibitors. The Veteran denied periods of incapacitation due to stomach or duodenal disease and reported gnawing or burning epigastric pain several times per week. These episodes occurred before eating, one to several hours after eating, and at night, and lasted approximately one hour. There were no episodes of hematemesis or melena, but the Veteran reported a history of weekly nausea and weekly, episodic diarrhea that occurred more than 12 times per week and lasted one day or less. There was no history of vomiting. The Veteran also reported symptoms of constipation. On physical examination, there were no signs of significant weight loss, malnutrition, or anemia. There was abdominal tenderness. X-ray examination revealed gastroesophageal reflux; filling defect at the midthoracic esophagus, a small mucosal lesion; gastritis; and duodenitis. The VA examiner recorded that the Veteran's service-connected stomach disability moderately affected feeding but did not affect chores, shopping, exercise, sports, recreation, traveling, bathing, dressing, toileting, or grooming. The Veteran was seen for a gastroenterology consultation in March 2010 due to several episodes of pancreatitis and persistent, dull abdominal pain. The record indicates an esophagogastroduodenoscopy in 2009 revealed gastritis. The Veteran denied loss of appetite, nausea, vomiting, and diarrhea. He reported a history of weight loss, constipation, diverticulosis, hemorrhoids, gallbladder disease, and pancreatitis. The Veteran underwent additional VA examination in May 2013 and an upper endoscopy was performed. X-ray examination revealed findings suggestive of gastritis, and the VA examiner diagnosed chronic gastritis. The Veteran reported daily stomach pain for which he took continuous medication. The Veteran described recurring episodes of symptoms that were not severe four or more times per year as well as continuous abdominal pain only partially relieved by standard ulcer therapy. The Veteran did not have recurring episodes of severe symptoms, anemia, weight loss, nausea, vomiting, hematemesis, or melena. The Veteran also did not experience incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. The VA examiner reported that the Veteran did not have hypertrophic gastritis, postgastrectomy syndrome, vagotomy with pyloroplasty or gastroenterostomy, or peritoneal adhesions following an injury or surgical procedure of the stomach or duodenum. The VA examiner found the Veteran's stomach condition did not impact his ability to work. In June 2013, the VA examiner opined that the Veteran's gastritis had remained without changes since the September 2008 VA examination. Here, the medical evidence does not demonstrate chronic gastritis with multiple small eroded or ulcerated areas and symptoms at any time during the pendency of the appeal. Although the Veteran reported symptoms of pain, nausea, diarrhea, and constipation at certain points during the appeal period, X-ray examination revealed gastritis and only one small mucosal lesion. Therefore, the Board finds a disability rating in excess of 10 percent for the Veteran's chronic gastritis is not warranted under Diagnostic Code 7307. The Board notes the presence of some additional symptomatology reported by the Veteran during the appeal period, to include some weight loss. However, this symptomatology has not been related by the medical evidence to the Veteran's service-connected disability. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's chronic gastritis but finds that no other diagnostic codes provide a basis for a higher rating. Diagnostic Code 7307 explicitly provides the criteria for gastritis and provides criteria applicable thereto, which contemplate the symptoms of the Veteran's disability. The Board notes that X-ray examination in September 2008 revealed duodenitis, which could be rated under 38 C.F.R. § 4.114, Diagnostic Code 7305. Under Diagnostic Code 7305, a 20 percent disability rating is warranted for a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous, moderate manifestations. Here, the Veteran specifically denied recurring episodes of severe symptoms and reported only dull abdominal pain. In addition, although the Veteran reported continuous abdominal pain only partially relieved by standard ulcer therapy, the evidence does not demonstrate vomiting, anemia, hematemesis, or melena productive of impairment of health, or incapacitating episodes. Therefore, the Board finds a disability rating in excess of 10 percent is not warranted under Diagnostic Code 7305. With respect to other diagnostic codes, the May 2013 VA examiner specifically found the Veteran did not have postgastrectomy syndrome, vagotomy with pyloroplasty or gastroenterostomy, or peritoneal adhesions following an injury or surgical procedure of the stomach or duodenum. As a result, the Board finds no other diagnostic codes provide a basis for a disability rating in excess of 20 percent for the Veteran's chronic gastritis. Finally, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). Here, the assigned rating of 10 percent reflects that the Veteran's disability is productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from the disability would be in excess of that contemplated by the already assigned rating. Specifically, the May 2013 VA examiner opined that the Veteran's chronic gastritis did not impact his ability to work. During the pendency of the appeal, the Veteran reported symptoms of pain, nausea, diarrhea, and constipation. Such manifestations are adequately contemplated by the schedular criteria for a 10 percent disability rating under Diagnostic Code 7307, which contemplates chronic gastritis with small nodular lesions and symptoms. The Veteran did not have recurring episodes of severe symptoms, anemia, weight loss, vomiting, hematemesis, or melena. The Veteran also did not experience incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. In addition, the record does not reflect that the Veteran has required frequent hospitalizations or marked interference with employment due to chronic gastritis. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. For these reasons, the Board finds the criteria for a disability rating in excess of 10 percent for chronic gastritis have not been met at any time during the appeal period. Accordingly, there is no basis for staged ratings pursuant to Hart, and a higher disability rating must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against an evaluation in excess of that already assigned, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 20 percent for lumbar degenerative disc disease with bulging discs prior to June 4, 2013 is denied. Entitlement to a disability rating in excess of 40 percent for lumbar degenerative disc disease with bulging discs on and after June 4, 2012 is denied. Entitlement to a disability rating in excess of 10 percent for chronic gastritis is denied. REMAND The United States Court of Appeals for Veterans Claims has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disabilities in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a formal claim for entitlement to a TDIU; however, in September 2008 the Veteran reported that he experienced severe flare-ups of symptoms associated with his service-connected back disability during which he was unable to do anything. In addition, the May 2013 VA examiner found the Veteran's back condition impacted his ability to work as it caused standing and ambulation limitations. Therefore, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and should be adjudicated as part of the claims on appeal. Id.; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). As such, the claim for entitlement to a TDIU is remanded for appropriate action. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should send the Veteran VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to return the form to the RO/AMC. 2. The RO/AMC should send the Veteran VCAA notice regarding a claim for entitlement to a TDIU. 3. The RO/AMC should complete any additional evidentiary development necessary to adjudicate a claim for entitlement to a TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history. 4. Then, the Veteran must be provided an evaluation by a VA vocational rehabilitation specialist to determine the effect of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The claims file should be made available for review. The vocational rehabilitation specialist must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the evidence, the specialist should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities alone, or acting in concert, preclude him from securing and following a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of either the Veteran's nonservice-connected disabilities or age. The specialist should note that the Veteran is currently service-connected for lumbar degenerative disc disease with bulging discs and chronic gastritis. A complete rationale for any opinion advanced must be provided. 5. Notify the Veteran that he must report for the examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 6. When the development requested has been completed, adjudicate the claim for entitlement to a TDIU. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs