Citation Nr: 1337787 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-33 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability rating for service-connected fibromyositis of the cervical spine, currently rated as 20 percent disabling. 2. Entitlement to an increased disability rating for service-connected fibromyositis of the thoracic spine, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1972 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony at a hearing conducted at the RO in October 2009 by the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the claims file. In January 2010, the Board remanded this claim for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the Veteran was examined and VA outpatient treatment records were obtained. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. The Veteran's cervical spine disability has not been manifested by forward flexion limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine; or intervertebral disc syndrome (IDS) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. The Veteran's thoracic spine disorder has not been manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, or combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. There is no ankylosis of the thoracolumbar spine and no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for fibromyositis of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2013). 2. The criteria for an evaluation in excess of 10 percent for fibromyositis of the thoracic spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by letter dated in October 2005. Additionally, VA has obtained treatment records, assisted the appellant in obtaining evidence, and afforded the appellant examinations. All known and available records relevant to the issue decided below have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations provided are adequate for making a determination in this case. Further, there is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected cervical spine and thoracic spine disorders since he was last examined. See 38 C.F.R. § 3.327(a) (2013). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159 (c)(4) (2013). Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is seeking an increased evaluation in excess of 20 percent of for his service-connected cervical spine disorder and in excess of 10 percent for his service-connected thoracic spine disorder. The Veteran is currently evaluated under the criteria of Diagnostic Code 5237, for his service connected cervical and thoracic spine disorders, which applies the General Rating Formula for Diseases and Injuries of the Spine; the disabilities are evaluated 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation 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 requires thoracolumbar spine 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Moreover, the General Rating Formula for Diseases and Injuries of the Spine provides that this evaluation scheme is applied 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. Id. Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013). In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 38 C.F.R. § 4.71a. Ratings in excess of 20 percent are provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of entire spine (100 percent). Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). 38 C.F.R. § 4.71a , Note (2) provides that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motions 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2013); See also 38 C.F.R. § 4.71a, Plate V (2012). Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 portrays 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 Veteran 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 (2013). 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 (2013). 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 (2013). 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence The Veteran was examined by VA at the Knox Community Hospital on a fee basis in February 2006. He reported having throbbing pain and tightness of the back with motion. He noted that he has difficulty looking up which caused pain and headaches. Examination of the neck showed no palpable tenderness; there was tenderness in the thoracic paraspinal area. He could flex his neck to 41 degrees; extend to 19 degrees with pain at the end of that motion. Lateral flexion was to 12 degrees left and right and rotation was to 30 degrees to the left and to 50 degrees to the right. He had no tenderness of the lumbar spine and he could flex to 95 degrees, extend to 22 degrees, lateral flex to 20 degrees to the left and 10 degrees to the right. Rotation was to 20 degrees bilaterally. All motion was without pain. Deep tendon reflexes were intact and he had good brachial reflex. His gait was normal. X-rays showed mild degenerative changes at the C4-5 and 5-6 and the thoracic spine was noted to show no evidence of degenerative changes. The impression was fibromyositis of the cervical and thoracic spine with X-ray evidence of early DJD at C4-5, C5-6. In December 2005 letter, a private examiner indicated that the Veteran was seen for a complaint of chronic neck pain. The Veteran reported that he was currently able to work but has pain and stiffness not to the degree that he is unable to perform his work. Examination showed that he had limitation of movement of the head and neck and he reported occasional radiation of pain into the arms. The examiner stated that there was no evidence of muscle atrophy or neurological abnormalities. X-rays were noted to show C4-7 disc narrowing and spurring with mild bilateral formiinal encroachment. A September 2006 private MRI showed an old T2 compression fracture. It was noted that there are degenerative changes with facet joint degenerative joint disease at multiple levels, but no spinal stenosis or spinal cord compression was seen and no disc protrusion was identified. The Veteran underwent a VA Fee Basis examination in November 2007. His history was noted. Examination showed tenderness to palpation of the cervical spine. Forward flexion was to 28 degrees, with pain to 30 degrees; extension was to 29 degrees. Lateral flexion was to 28 degrees, left and to 12 degrees, right. Lateral rotation was to 30 degrees to the left and to 10 degrees with pain to 20 degrees to the right. The thoracolumbar spine had tenderness in the lumbar area with muscle spasms bilaterally. Flexion was to 70 degrees with pain to 85 degrees. Extension was to 17 degrees with pain to 20 degrees. Lateral flexion was to 6 degrees, left and to 16 degrees, right. X-rays showed degenerative changes at C4-5 and C5-6. There were mild degenerative changes involving the lower thoracic spine. The impression was, fibromyositis of the cervical and thoracic spine with essentially unchanged findings from his examination in February 2006. The examiner noted that the Veteran continues to subjectively complain of pain. VA outpatient records from 2009 and 2010 show that in March 2009, the Veteran reported having neck pain. Decreased range of motion of the neck was noted. There was cervical muscle tightness and tenderness to palpation. In July 2009, back flexion was noted to be to 45 degrees. The Veteran was examined by VA in March 2010. The claims file was reviewed. The Veteran's history was documented. The Veteran reported having pain at the base of the neck and his mid back. He reported sometimes having sharp pains that are not true flare-ups, where he is incapacitated but rather if he moves his head a certain way of has a jerk he will get a sharp pain that goes away almost immediately. It was noted that he had no true flare-ups. The pain was described as moderate with no episodes of incapacitating back pain or neck pain in the last 12 months. It was noted that he has never been prescribed bed rest by any physician. He reported that he retired 6 years prior mainly over a disagreement with his boss. He indicated that he did not retire due to his back or neck. It was noted that he does some odd jobs such as painting and grass cutting. He was able to walk about an hour before he has symptoms and it was noted he performs all activities of daily living himself. He has no bowel or bladder problems, no muscle spasm and no erectile dysfunction. Examination of the cervical spine showed flexion to 30 degrees; extends to 25 degrees; laterally flexes to 30 degrees to the left and to 25 degrees to the right; rotates to 45 degrees to the left and to the right. With multiple attempts at motion he had no pain, fatigability, incoordination, weakness or stiffness. There was no loss of motion on repetition. His gait was normal. As to the thoracolumbar spine, he forward flexed to 65 degrees; extended to 20 degrees; left laterally flexed to 20 degrees; right laterally flexed to 25 degrees; left rotation was to 25 degrees and right rotation was to 20 degrees. There was no loss of motion on repetition, and he had no pain, fatigability, incoordination, weakness or stiffness. There was midline tenderness at the base of the cervical and mid thoracic spines. There was no muscle guarding. He had 5/5 strength in the upper extremities and he felt light touch sensation at C5-T1 distributions. His reflexes bilaterally were 2+. As to the lower extremities there was 5/5 strength in hip flexion, extension, knee flexion, knee extension, ankle dorsiflexion and plantar flexion and great toe extension. He felt light touch and deep tendon reflexes were 2+. X-rays showed degenerative arthritis of eh cervical spine thoracic spine. The examiner noted that the disorders were not blocking employment and the Veteran had the capacity to work. Discussion The Board acknowledges the Veteran's subjective complaints related to his neck, and his thoracic spine to include pain, the need for medication, and his inability to perform certain daily routines, and finds his assertions both competent and credible. The Board has considered the statements of the Veteran as to the extent of his current symptoms, as he is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. See Massey, 7 Vet. App. at 208. As to the cervical spine, in order to merit the assignment of the next highest (30 percent) rating under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the cervical spine must be limited to 15 degrees or less, or there must be evidence of favorable ankylosis of the entire cervical spine. The Veteran's cervical spine does not have ankylosis. See VA treatment records; VA examination reports. Moreover, at worst, his cervical spine flexion has been limited to 28 degrees, which is thirteen degrees more than the minimum needed to support a 30 percent rating. For these reasons, a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted. At no point in this appeal has his forward flexion been limited to 15 degrees or less. There is no showing of ankylosis and he has not had any incapacitating episodes. Considering the evidence of record, the Board finds that the overall disability picture associated with the Veteran's cervical spine disorder does not more closely approximate the criteria for an evaluation in excess of 20 percent based upon limitation of motion of the spine at any time during the course of this appeal. As well the Board finds that the overall disability picture associated with the Veteran's thoracic spine disorder does not more closely approximate the criteria for an evaluation in excess of 10 percent based upon limitation of motion of the spine at any time during the course of this appeal. 38 C.F.R. § 4.71a, General Rating Formula. At no point during the pendency of this claim does the evidence of record demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, even after repetitive testing. Moreover, at worst, his thoracic spine flexion has been limited to 65 degrees, which is thirty five degrees more than the minimum needed to support a 20 percent rating. His combined range of motion is not greater than 120 degrees. There have been no incapacitating episodes and no muscle guarding. While muscle spasm was noted on VA examination it was not shown to be severe enough to result in abnormal spinal contour. The Veteran does not contend, nor does the evidence show, any flare up or time lost from work required bed rest prescribed by a physician and treatment by a physician, which is the definition employed for an "incapacitating episode." In making these determinations, the Board has considered whether there was any additional functional loss not contemplated in the 20 percent evaluation for the Veteran's orthopedic manifestations of his service-connected cervical spine disorder or the 10 percent evaluation for his service-connected thoracic spine disorder. See 38 C.F.R. §§ 4.40, 4.59 (2013); see DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). On examination in March 2010, there was no additional limitation in range of motion in the cervical spine or the thoracolumbar spine following repetitive range of motion testing. Muscle strength testing revealed 5/5 strength in the Veteran's upper and lower extremities. Deep tendon reflexes were 2+ in the upper and lower extremities. The Veteran further noted there had been no incapacitating episodes of back pain in the past year such that a doctor ordered bed rest. And as noted above, the Veteran does not contend nor does the evidence show flare up or time lost from work required bed rest prescribed by a physician and treatment by a physician, which is the definition employed for an "incapacitating episode." Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether r or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Notably, the rating of intervertebral disc syndrome is based on incapacitating episodes (i.e., doctor-prescribed bed rest). See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). However, there is no medical evidence or complaint of bed rest prescribed by a physician. Therefore, there exists no basis whatsoever for a higher evaluation under Diagnostic Code 5243. Moreover, the most recent examination report noted no objective evidence of pain of motion in forward flexion of the cervical spine or the thoracic spine; and repetitive range of motion testing did not reduce the forward flexion exhibited. Under these circumstances, the Board finds that an evaluation in excess of 20 percent for the Veteran's service-connected cervical spine disorder and in excess of 10 percent for the thoracic spine disorder is not warranted under the General Rating Formula. Id. The Board has also considered whether the Veteran's service-connected cervical and thoracic spine disabilities manifest any associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The Veteran has denied any bowel or bladder impairment or any erectile dysfunction. There are no associated objective neurologic abnormalities related to either disability noted in the record. Finally the evidence shows no distinct period of time during the appeal period during which manifestations of either disability have varied to such an extent that an increased rating would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence does not show manifestations of the Veteran's service-connected disorders meet the criteria for an increased evaluations at any point during the pendency of this appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra Schedular Generally, evaluating a disability using either the corresponding or the analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular 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. Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates the Veteran's disability picture, and the assigned schedular evaluation is adequate, and no referral is required. The schedular evaluations in this case are adequate. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disabilities are not productive of such manifestations. As the available schedular criteria for these service-connected disabilities are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Veteran has not indicated that he is not employed as a result of his cervical or thoracic spine disability. In the absence of such a history, or other competent evidence suggestive of unemployability due to either disability, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An increased disability rating for service-connected fibromyositis of the cervical spine, currently rated as 20 percent disabling is denied. An increased disability rating for service-connected fibromyositis of the thoracic spine, currently rated as 10 percent disabling is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs