Citation Nr: 1337778 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-12 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased initial rating for degenerative disc disease of the lumbar spine (low back disability) rated at 20 percent. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for a low back disability and rated the disability at 20 percent. The Virtual VA paperless claims processing system does not contain additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's low back disability is manifested by localized pain on the right side of the low back, forward flexion of the thoracolumbar spine of between zero and 45 percent, muscle tenderness, and antalgic gait. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for a low back disability have not been met at any point during the pendency of this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71(a) Diagnostic Code (DC) 5242 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board discusses the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should generally be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, a delay in timing is "cured" and therefore harmless when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through the issuance of an SOC or SSOC) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The appeal of the 20 percent rating assigned to the Veteran's low back disability stems from a granted claim of service connection. In initial rating cases, where service connection has been granted and an initial disability rating and effective date assigned, VCAA notice under 38 U.S.C.A. § 5103(a) is not required because the purpose that the notice is intended to serve has been fulfilled with the grant of service connection. Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the "downstream elements" of the degree of disability and effective date assigned. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). After the Veteran filed his August 2010 claim for service connection for a low back disability, an October 2010 letter informed him of the elements of service connection. The letter described VA's general criteria for assigning a disability rating as well as the Veteran's and VA's respective responsibilities for obtaining relevant evidence in support of his claim. Therefore, the duty to notify is satisfied. See id.; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA treatment records are in the claims file. Private treatment records identified by the Veteran have also been associated with the file and he has not identified any other records or evidence that remains outstanding. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when and examination or opinion is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When an increased initial rating is at issue, the present level of the Veteran's disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, the VA examiner's task was to evaluate the Veteran's low back disability as it manifested during the time of the examination. In addition, where the evidence of record does not reflect the current state of the claimant's disability, a new VA examination must be conducted. See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An appropriate VA spine examination was performed in March 2011 and the accompanying examination report is adequate for rating purposes. The examiner reviewed the Veteran's medical history, performed an examination, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his low back disability since he was last examined in March 2011. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95 (April 7, 1995). Accordingly, VA's duty to obtain a VA examination has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. In summary, VA's duties to notify and assist under the VCAA have been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . must be considered prejudicial")). As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication." See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error). Accordingly, the Board may proceed with appellate review. II. Analysis The Board has thoroughly reviewed the record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Although the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must assess the credibility and weight of all evidence, including both lay and medical evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. With regard to the competency of the evidence, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Thus, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See id. (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent merely because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). In this regard, lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. Barr, 21 Vet. App. at 309; see also Jandreau, 492 F. 3d at 1376-77 (observing that a lay person is not competent to identify more complex conditions such as a form of cancer). For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board must discount the probative value of lay evidence if it finds such evidence not to be competent in light of the above guidelines. See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (noting that lay evidence must "demonstrate some competence") (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted)); see also Layno, 6 Vet. App. at 469 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to that fact, and that incompetent testimony must be excluded from consideration). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1); see also Layno, 6 Vet. App. at 469. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. 38 C.F.R. § 3.159(a)(1). It also includes statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence. See Layno, 6 Vet. App. at 469 (observing that the credibility and weight of testimony are factual determinations that must be distinguished from the initial assessment of its competency); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected low back disability. In his April 2011 Notice of Disagreement (NOD), the Veteran states that a 20 percent rating for his low back disability does not adequately consider functional loss due to pain on movement and/or the side effects of his medications. For the reasons that follow, the Board concludes that an increased initial rating is not warranted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2013). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2013). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2013) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45 (2013), consideration must also be given to weakened movement, excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). The intent of the schedule is to recognize painful motion of the joints or a particular pathology that results from disability. 38 C.F.R. § 4.59 (2013). Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court held that although painful motion is entitled to a minimum 10 percent rating, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. Id. at 43. The Veteran's low back disability has been assigned a 20 percent rating under DC 5242, which pertains to degenerative arthritis of the spine. 38 C.F.R. § 4.71a. The current rating schedule provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, DCs 5235-5243. The evaluation of intervertebral disc syndrome will be discussed below. Under the General Rating Formula: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. See id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. They "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2). In addition, unfavorable ankylosis is defined, in pertinent part, as "a condition in which the . . . entire thoracolumbar spine . . . is fixed in flexion or extension." Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The VA examination for the spine was performed in March 2011. The VA examiner found tenderness along the Veteran's thoracolumbar spine without ankylosis or spasms. He also found that the Veteran had mild right lower extremity antalgia with ambulation as well as right lower extremity pain, but no abnormal spine contour. The examiner noted symmetrical spine and musculature, erect posture, no scoliosis, and normal lodosis. Moreover, the examiner observed that forward flexion for the Veteran's thoracolumbar spine ranged from zero to 45 degrees. Based on these findings, the Veteran's back disability does not meet the criteria established by the General Rating Formula for a rating in excess of 20 percent. The Board has considered whether the Veteran has an additional disability of the spine beyond the recorded range of motion measurements due to weakened movement, painful movement, excess fatigability, or incoordination, such as after repetitive use of the spine. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 206-07. During a private medical consultation in September 2010, the Veteran denied having muscle pain or weakness associated with his low back disability and even stated that his symptoms were "improving slowly." The private physician commented that the Veteran "moves all extremities well" and that his gait was normal. Although the VA examiner noted that the Veteran had pain with motion, the pain did not affect the normal working movement of the lower spine beyond the limitations of motion already compensated. Specifically, the Veteran's ranges of motion remained the same even after three repetitions and did not require additional strength or result in increased pain. See Mitchell, 25 Vet. App. at 43. In addition, the VA examiner noted that although the Veteran wears a lumbar support, his low back disability does not prevent him from walking unaided for up to a mile or from completing his activities of daily living. Thus, the medical evidence does not support a higher disability evaluation based on functional loss due to pain, weakness, fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45. The Board has also considered the Veteran's statements regarding his back pain and associated functional limitations. To the extent that these statements conflict with objective medical findings stated above, they do not constitute credible evidence of additional disability. During the VA examination in March 2011, the Veteran reported that he is unable to lift or carry, has limitations regarding standing and/or walking, and his medication makes him sleepy. During a private psychiatric consultation in August 2011, he reported that his back pain prevents him from sleeping, "doing what he wants to do," and "functioning" and that he "is in daily agony and pain." Similarly, during an April 2012 VA examination for posttraumatic stress disorder, the Veteran reported that his low back disability "prevents him from sleeping and doing normal day to day functioning, posing physical limitations." He also reported "difficulty carrying out physical and sedentary work tasks due [in part] to . . . chronic back pain" and that his low back disability caused him to be absent from work in the past. The Veteran's reports of pain, exertional limitations related to carrying and standing, and difficulty functioning at work do not evidence a worse disability than the disability for which the he has been compensated. Moreover, the Veteran's statements regarding functional loss do not indicate a loss of working time beyond what is contemplated by the General Rating Criteria. During the March 2011 VA examination, the Veteran stated that his back disability does not affect his activities of daily living and that he missed between 5 and 6 days of work in 2010 due to back problems. During the April 2012 VA examination the Veteran stated that he has not had to leave work in the last ten years due to back pain. Thus, the Veteran's lay statements do not indicate that his low back disability and/or the side effects of his medications restrict his work time or otherwise result in functional loss beyond that contemplated by the General Rating Criteria. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59. Although the Veteran has occasional flare-ups of low back pain, the March 2011 VA examination report does not show that his overall disability warrants a rating in excess of the 20 percent rating currently assigned. The Veteran reported occasional flare-ups that result in mild to moderate limitations of motion and/or decreased functionality and require the use of a cane. However, he also reported that he only missed between 5 and 6 days of work in 2010 due to his low back disability and that his disability does not affect his activities of daily living. Thus, the evidence of record does not indicate that the Veteran's overall level of disability is worse than what is contemplated by a 20 percent rating and, therefore, a higher rating is not warranted under the DeLuca criteria. See id. Based on the above review of the evidence of record, the Veteran's back disability does not meet the criteria for a rating in excess of 20 percent under the General Rating Formula. Further, the General Rating Formula provides that associated neurologic abnormalities must be rated separately under the appropriate DC. See 38 C.F.R. § 4.71a. In August 2010, a private physician diagnosed the Veteran as having mild radiculopathy; however, in September 2010 the same physician re-examined the Veteran and found that his pain was localized to his right low back. The physician diagnosed the Veteran as having "chronic musculoskeletal lower back pain, improving slowly" and observed that he had no problems moving his extremities and exhibited a normal gait. Moreover, the Veteran denied any numbness, tingling, or falling due to his low back condition. Similarly, the March 2011 VA examiner found that the Veteran's back pain was not radiating and did not identify any neurological abnormalities associated with the Veteran's back disability. The VA examiner noted that the Veteran had a positive straight leg raising test at 30 degrees on the right side, a positive straight leg raising test at 45 degrees on the left side, and hypoactive reflexes at the ankles and knees bilaterally. However, the examiner did not diagnose the Veteran as having a neurological disorder or otherwise suggest that the Veteran suffered from such a disorder. Although the Veteran reported experiencing numbness and tingling in his fingers and toes during a private psychiatric consult in June 2011, his symptoms were associated with panic attacks and not with his low back disability. Thus, the probative evidence of record does not indicate that the Veteran has a neurological disorder associated with his low back disability Under DC 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2013). 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a (DC 5243). 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. See 38 C.F.R. § 4.71a Note (1). Although the VA examiner diagnosed the Veteran as having degenerative disc disease (and x-rays taken in February 2009 show mild degenerative joint disease), the Veteran has not stated, and the evidence of record does not otherwise show, that he has been prescribed bed rest by a physician for his low back disability during the pendency of this claim. In fact, the Veteran only missed between 5 and 6 days of work in 2010 due to his back disability. Accordingly, a higher rating based on incapacitating episodes due to intervertebral disc syndrome is not warranted. See id. Similarly, because the Veteran has service-connected arthritis of the lumbar spine, the Board has considered the DCs specific to arthritis. Traumatic arthritis is to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DC 5010. Under DC 5003, degenerative arthritis, established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See id, DC 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. The Court has held that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59; but see Mitchell, 25 Vet. App. at 43 (holding that pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' . . . in order to constitute functional loss" warranting a higher rating). By its express terms, DC 5003 does not allow for a separate rating based on arthritis of a joint when a compensable rating has been assigned under an appropriate DC pertaining to limitation of range of motion. 38 C.F.R. § 4.71a, DC 5003; see also 38 C.F.R. § 4.14 (prohibiting compensation of the same manifestations of a disability under various diagnoses). Because the Veteran has been assigned a 20 percent rating under DC 5242 based on limited (zero to 45 percent) forward flexion of the thoracolumbar spine, higher or separate ratings are not warranted under DC 5003. See id. The Board has considered whether to the address the issue of a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2013). In Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court held that a request for TDIU is not a separate claim for benefits; rather it involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased initial rating is sought, the issue of whether a total rating based on individual unemployability is part and parcel of the claim for an increased initial rating. Id. at 455. The Veteran has not stated and the evidence of record does not otherwise suggest that his low back disability is sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment. In fact, the Veteran is currently employed on a part-time basis and stated during the April 2012 VA examination that his disability does not interfere with his work with handicapped children. Thus, the issue of entitlement to TDIU has not been raised. See id. Finally, the Board has considered whether the evaluation of the Veteran's low back disability should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. In exceptional situations where the rating is inadequate, the case may be referred for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare 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. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Referral for extraschedular consideration is not warranted. A comparison of the Veteran's low back disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Veteran's low back disability is manifested by pathology and symptoms expressly addressed by the rating criteria, including arthritis, degenerative disc disease, and associated pain and limited motion. See 38 C.F.R. § 4.71a, General Rating Formula (providing, in pertinent part, for ratings based on limited motion, irrespective of the presence of pain and whether or not it radiates); 38 C.F.R. § 4.71a, DC 5003 (providing for ratings for arthritis); see also 38 C.F.R. §§ 4.40, 4.45, and 4.59 (providing for at least a compensable rating for painful motion of a joint, as well as excess fatigability, weakness, and incoordination). Thus, the Veteran does not have symptoms associated with his low back disability that have been left uncompensated or unaccounted for in the assignment of his schedular rating. See Thun, 22 Vet. App. at 115. With regard to functional limitations not directly mentioned by the rating criteria, such limitations do not appear to be exceptional or unusual for a low back disability and thus fall within the province of the schedular criteria. As stated in 38 C.F.R. § 4.21 (2013), "[c]oordination of rating with impairment of function will . . . be expected in all instances." Thus, although a particular DC may provide for evaluations of a disability in terms of objective clinical data rather than in terms of symptoms or functional impairment, the purpose of the ratings themselves is necessarily to provide compensation for the symptoms and functional impairment caused by the disability in question, particularly with regard to how they affect earning capacity. For example, limited and painful motion would be expected to cause difficulties with standing, walking, lifting, and carrying. In this respect, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Thun, 22 Vet. App. at 115. The Veteran has not described any functional impairment beyond what would reasonably be contemplated by the rating criteria. For example, limited and painful motion would be expect to cause difficulties standing, walking, lifting, and carrying. There is no other evidence indicating that his low back disability is "exceptional" or "unusual." See id. Therefore, the rating criteria reasonably describe the Veteran's service-connected disability. In summary, there are no symptoms or functional impairment associated with the Veteran's service-connected low back disability left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Thus, the available schedular evaluations are adequate to rate this disability, and the first step of the inquiry is not satisfied. See id. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See id. at 118-19 (holding that the Board's "threshold" finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Indeed, in the absence of an exceptional or unusual disability picture under the first Thun factor, marked interference with employment is not sufficient by itself to warrant extraschedular referral, as the rating schedule "clearly recognizes that the rated disabilities interfere with employment." See VAOPGCPREC 6-96 (August 16, 1996). Moreover, such related factors are not shown. Accordingly, referral for extraschedular consideration is not warranted. See id. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to a rating greater than 20 percent for low back disability is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2013); Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an increased initial rating for a low back disability rated at 20 percent is denied. ____________________________________________ Kelli A. Kordich Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs