Citation Nr: 1338705 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-14 875 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for traumatic thoracolumbar spine disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction rests with the RO in Anchorage, Alaska, from which the appeal was certified. The issue of entitlement to service connection for radiculopathy of the lower extremities, to include as secondary to service-connected traumatic thoracolumbar spine disease, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's traumatic thoracolumbar spine disease was manifested by chronic pain, weakness, stiffness, tenderness, spasm, and decreased range of motion and resulted in incapacitating episodes requiring bed rest. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Veteran, the criteria for an initial disability rating of 40 percent for traumatic thoracolumbar spine disease have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 a June 2009 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). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the June 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The June 2009 letter also notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability, the different types of evidence available to substantiate his claim for a higher rating, the need to submit evidence of how such worsening affected his employment, and the requirements to obtain a higher rating. 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, and private treatment records have been obtained and associated with the claims file. In addition, the Veteran underwent VA examination in July 2009 and April 2011 in connection with his claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record demonstrates that the VA examiners reviewed the pertinent evidence of record and the Veteran's lay statements. Additionally, the examinations provided sufficient information to rate the service-connected disability 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. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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 matter 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). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 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 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 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 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). The Veteran asserts that the symptoms of his back disability warrant a higher disability rating than that already assigned. Service treatment records reflect diagnoses of intervertebral disc degeneration and back strain sacroiliac region. An August 2005 service treatment record shows the Veteran ambulated with slight facial grimacing to stand and sit. He had tenderness at the T11-12 area with flexion past 30 degrees and extension past 10 degrees. Right and left torsion were okay at 45 degrees and left lateral bending was okay at 45 degrees. An August 2006 service treatment record reflects that the Veteran did not have numbness or tingling, or bowel problems. He had a constant, dull, achy pain, and sharp pain with any kind of movement or with sitting. The Veteran's thoracolumbar spine demonstrated full range of motion and pain was not elicited at the extreme limits of range of motion. His lumbosacral spine was of normal appearance and did not exhibit muscle spasms. An August 2006 private treatment record shows the Veteran reported that he had pain in his lower back along the spine to the mid-upper back. He described the pain as shooting, dull, intense, severe, brief, and constant with soreness. He stated that movement, physical activity, pressure, sitting, sneezing, coughing, and standing increased the pain. The Veteran also reported that he had weakness/numbness of the arms and legs as well as difficulty walking. He also reported scoliosis. An additional August 2006 private treatment record reflects the Veteran's complaints of constant lower back pain. He denied numbness and tingling into the lower extremities and bowel or bladder changes. The Veteran had decreased forward flexion, and on extension of the lower back he had increasing pain, which was increased further with rotation. He had a normal gait pattern. In November 2006, the Veteran underwent a three-level provocative discography procedure. The private physician found that one component of the Veteran's pain was reproduced on pressurization of the L5-S1 disk, which caused the sense of heaviness and aching in the low back associated with prolonged sitting or standing. At L3-L4, pressurization of the disk reproduced a more significant component of his pain, which was aching in the back with radiation of pain into the buttocks and occasionally down the legs. An April 2007 service treatment record shows the Veteran had full range of motion and normal curvature. A May 2007 service treatment record indicates the Veteran had increasing lumbosacral pain with extension. The lumbar spine was normally aligned in neutral position, as well as with flexion and extension. There were no fractures or degenerative changes, and the sacrum and sacroiliac joints were normal. A July 2007 MRI showed five lumbar-type vertebrae present. The impression was minimal endplate changes at the L1-2 level with some disc desiccation. There was no evidence of disc herniation or nerve root impingement at any level. In January 2008 and February 2008, the Veteran had full range of motion of the thoracolumbar spine and lumbosacral spine. A March 2008 service treatment record reveals that the Veteran's thoracolumbar spine had full range of motion and pain was not elicited throughout the range of motion. Lumbosacral spine pain was elicited at the extreme limits of range of motion but not throughout the range of motion. The Veteran underwent VA examination in July 2009 in connection with his claim. The Veteran reported recurrent low back pain, progressively more severe and occurring at shorter intervals. He was not on any medication. The Veteran denied neurological symptoms in connection with his back disability. He reported fatigue, decreased motion, stiffness, weakness, spasms, and constant, moderate pain located in the mid and lower back. He experienced daily pain and radiation of sharp pain down his left leg and buttock to the knee. The Veteran described severe flare-ups that occurred weekly and lasted one to two days. He reported that during flare-ups he could care for himself but avoided any unnecessary activity. He stayed home from work almost one day per week. He reported incapacitating episodes but none in the past twelve months. Activity did not seem to exacerbate the pain, and the Veteran stated that the constant ache was not prohibitive to walking or running. His posture and head position were normal, and his spine was symmetrical in appearance. On inspection, there was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis, or ankylosis. There were also no objective abnormalities of the thoracic sacrospinalis, to include spasm, atrophy, guarding, pain with motion, tenderness, and weakness. Muscle spasm, localized tenderness, and/or guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Muscle tone was normal, and there was no muscle atrophy. Sensation and reflexes were normal. Flexion was to 80 degrees, extension was to 25 degrees, and left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation were to 30 degrees, respectively. There was objective pain on active range of motion, and there was objective evidence of pain following repetitive motion that did not result in additional limitations of range of motion. CT scans in August 2008 of the thoracic, lumbar, and lumbosacral spine were normal. There were no incapacitating episodes due to intervertebral disc syndrome. The Veteran was employed full-time as a ground technician for wireless systems. In the past 12 months, the Veteran had missed four weeks of work due to back pain. He was allowed to take time off as needed so long as the work was finished. The VA examiner diagnosed minor traumatic lumbar spine disease and found the Veteran's back disability significantly affected his usual occupation by causing increased absenteeism, which was due to decreased mobility, problems with lifting and carrying, and pain. The Veteran's back disability severely affected sports and recreation, moderately affected chores and exercise, and mildly affected shopping and traveling. A November 2009 VA treatment record shows the Veteran complained of daily lower back pain and thoraco-lumbar pain, which was worse with any movement and radiated to both buttocks. In January 2010, the Veteran reported daily pain with some occasional radiation to his left buttock, left foot, and the back of the knee. He reported that sometimes he had a lot of muscle spasm. On examination, the Veteran had mild straightening of the lumbar area and mild tenderness over the lumbar paravertebral muscles and lumbar spinous processes, with no obvious spasticity of muscles. The VA physician found the Veteran had some element of chronic pain syndrome and certainly some muscle pain. A July 2010 VA treatment record shows the Veteran reported that it was sometimes hard for him to get out of bed. On examination, there was mild muscle tenderness over the paravertebral muscles of the thoracic and lumbar area. There was also tenderness over the spinous processes of the lower thoracic and lower lumbar areas, with no gross spasticity. In his October 2010 notice of disagreement, the Veteran asserted his back problems and the evidence showing the treatment he had tried while on active duty supported a higher disability rating. He stated that since his separation from service, he had substantial problems with his back and had undergone extensive treatment at a local pain management center. He reported that he went through several treatments and tried several medications while under their care with no or minimal relief of pain. He also stated that his back problems had an adverse impact on his life and that he had made several changes in his lifestyle as a result of his back disability. He had been advised not to take hiking trips or participate in strenuous activities, and he was to avoid long periods of sitting and standing, which he stated had definitely impacted his career path. The Veteran reported that he had been turned down for a couple of jobs because of his physical limitations. He also stated that he had to start taking several medications again to help deal with the pain and that he took a narcotic pain reliever daily, as well as a mild pain reliever. He also had to take muscle relaxers and anti-inflammatory pills throughout the day. He was also taking medication to help him sleep through the night. The Veteran reported that he lived his life in constant, aggravating pain with no end in sight. In November 2010, the Veteran reported a flare-up of pain to the low- and mid-back that lasted approximately two and a half weeks. A November 2010 VA treatment record indicates the Veteran took a week off from work due to his back pain. He had experienced increasing pain associated with longer days at work and occasional lifting of heavy things at work. The Veteran also had an increased narcotic requirement in the past several months. He did not feel that he was meeting the requirements for his job. A December 2010 private treatment record reflects the Veteran's reports that he had back pain symptoms three to four days out of the week and that he woke up in pain. He described that all of his toes on both feet felt a little weird and commented that there was some right hand numbness and tingling. He denied lower limb weakness and bowel and bladder dysfunction. The Veteran reported disrupted sleep and that he was unable to lie flat in bed. Inspection of the back demonstrated mild flattening of the lumbar lordosis, and musculoskeletal examination showed a mild decrease in lumbar flexion and extension. The Veteran had difficulty going from flexion to full standing, with complaints of back pain while doing so. The Veteran's gait and strength in both lower limbs were normal. In March 2011, the Veteran reported chronic back pain and that he had a flare-up of pain without trauma that had lasted for the past four weeks. He stated that morphine had been working well before the flare-up, with hardly any pain at all. The Veteran stated that he continued to search for a different job and was considering a move to a state with a warmer climate, which seemed to help his back. The Veteran also noted increased sensitivity to cold weather and that his hands, sinuses, and feet were often cold. The physician reported that the Veteran had a history of being acclimated to certain medications, particularly narcotics. In April 2011, the Veteran underwent additional VA examination in conjunction with his claim. The Veteran reported that he had constant pain during flare-ups that became severe and incapacitating. He experienced flare-ups every one to two months that lasted three to seven days, during which he could hardly move. He had difficulty standing and tying his shoes and was unable to lift his son or buckle him in his car seat during these flare-ups. The VA examiner reported that the Veteran had numbness and paresthesias related to his back pain, which radiated to either the right or the left leg. The Veteran had a history of fatigue, decreased motion, stiffness, weakness, spasm, and spine pain in the thoracolumbar spine from approximate T10-L5. The onset of his pain was described as constant pain with severe exacerbations. The Veteran reported that most of the time his pain was moderate but sometimes it became severe. The Veteran described the pain as daily and constant and reported sharp radiation of pain from the posterior thighs to the toes when he walked. The Veteran used an orthotic insert and was able to walk one to three miles. He was unable to walk more than a few yards when having flare-ups but worked during them despite it being difficult. The Veteran's posture and head position were normal, and his spine was symmetrical. His gait was normal, and there was no evidence of gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or ankylosis. Objective abnormalities of the thoracolumbar sacrospinalis included tenderness on the left and right sides. There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Flexion was to 75 degrees, extension was to 30 degrees, and left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation were to 30 degrees, respectively. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. Sensory findings were normal for all extremities. Muscle tone was normal, and there was no muscle atrophy. There was mild tenderness at T12-L1 and L5-S1. The VA examiner reported that there were incapacitating episodes due to intervertebral disc syndrome. The Veteran was employed full-time as a systems technician on defense systems and had lost 12 days of work during the past 12-month period due to pain from flare-ups. The VA examiner diagnosed degenerative disc disease of the lumbar spine with stable remote endplate injury anterior to the first lumbar vertebra. According to the VA examiner, the Veteran's back disability resulted in work problems that included the assignment of different duties, increased tardiness, and increased absenteeism. The Veteran's work was also affected by decreased concentration, poor social interactions, decreased mobility, problems with lifting and carrying, difficulty reaching, a lack of stamina, weakness, fatigue, and pain as the result of his back disability. The Veteran's back disability affected his usual daily activities in that his pain affected his mood and interactions with others. He was limited as to recreation with his family and friends and was unable to help with family activities. Flare-ups prevented him from cooking, shopping, lifting, and bending over. In his May 2011 substantive appeal, the Veteran reported that he avoided being placed on bed rest because he could lose his job and that instead he dealt with his pain by spending several days off at home resting. The Veteran stated that on several occasions, by the time he was able to be seen for his pain, it had passed and he had already taken the necessary steps to manage it. He reported that he had never been denied personal time off, and therefore he had not needed to seek prescribed bed rest. The Veteran stated that every day was different with respect to his pain and flexibility. He described severe pain more often than not and emphasized the amount of medication he had to take in order to have a minimally painful day. The Veteran stated that his medications caused him to be fatigued and kept him up for hours during the night. Some of his medications affected his mood and his career opportunities had been impacted by sudden onsets of pain and by long-term pain. He had to pass up some jobs that required more physical exertion, and he had been limited in the jobs to which he could apply for the same reason. His back problems also limited his personal and family life in that he had to limit some of the things he enjoyed doing the most, which included hiking, fishing, camping, going to the movies, and attending baseball games. He also stated that there were several times when he was unable to lift his son into his car seat. In a July 2012 informal hearing presentation, the Veteran's representative asserted that the Rating Schedule did not allow for a good evaluation of the Veteran's condition. Additionally, the representative stated that the VA examinations appeared to catch the Veteran during good phases of his condition with respect to range of motion. According to his representative, the Veteran refused bed rest as he was fearful of losing his job, and therefore, he heavily medicated himself. The representative asserted that the back condition had a definite impact on the Veteran's employment as well as his quality of life. The representative argued that a minimum of 20 percent should be granted as the outpatient treatment records indicated constant pain and problems with loss of motion as well as the Veteran's desire for medication to keep him working. The Veteran's traumatic thoracolumbar spine disease is currently rated as 10 percent disabling. For a 20 percent disability rating, the evidence must show functional impairment comparable to 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. In addition, an increased rating of 20 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 one week but less than two weeks during the past 12 months. Here, the medical evidence does not demonstrate 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. Although the August 2006 private treatment record indicates the Veteran had decreased forward flexion, the degree of loss of motion was not specified. On examination in July 2009, flexion was to 80 degrees, extension was to 25 degrees, and left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation were to 30 degrees, respectively, which results in a combined range of motion greater than 120 degrees. The December 2010 treatment record shows findings of only a mild decrease in lumbar flexion and extension. In April 2011, flexion was to 75 degrees, extension was to 30 degrees, and left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation were to 30 degrees, respectively, which also totals a combined range of motion greater than 120 degrees. In January 2010, the Veteran reported a lot of muscle spasms, and private treatment records indicate there was evidence of mild straightening of the lumbar area and flattening of the lumbar lordosis. However, the physicians did not indicate that muscle spasms or guarding were severe enough to result in these abnormalities. Furthermore, neither the July 2009 or April 2011 VA examiner reported that there was muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. With respect to other neurological symptoms, the evidence does not show the Veteran reported any neurological symptoms associated with his back disability at any time during the appeal. All treatment records, including the VA examinations in July 2009 and April 2011, indicate the Veteran denied neurological symptoms, and a December 2010 private treatment record shows the Veteran denied bowel or bladder dysfunction. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In this case, the record does not demonstrate any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. However, the Board considers highly probative the evidence showing a significant number of incapacitating episodes that required bed rest but were not prescribed by a physician. Specifically, in July 2009, the Veteran reported that he had missed four weeks of work in the past 12 months due to his back pain. In April 2011, the Veteran reported incapacitating episodes that occurred for three days almost every month. In May 2011, the Veteran reported that he avoided being placed on bed rest because he could lose his job and that instead he dealt with his pain through constant medication and by spending several days off at home resting. He reported that he had never been denied personal time off, and therefore he had not needed to seek prescribed bed rest. Although the evidence does not demonstrate that a physician prescribed best rest, in this case the evidence shows the Veteran was continuously treated by a physician throughout the appeal period. In addition, the Board finds credible the Veteran's statements regarding his avoidance of seeking prescribed bed rest due to fear of losing his job. As such, the Board finds the evidence meets the criteria for a 40 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2013). Here, the Board has taken into particular consideration the impact of the Veteran's back disability on his occupation and career. In July 2009, the VA examiner found the Veteran's back disability significantly affected his usual occupation by increased absenteeism. In October 2010, the Veteran reported that he had been turned down for a couple of jobs because of his physical limitations. The April 2011 VA examiner reported that the Veteran's back disability resulted in work problems that included the assignment of different duties, increased tardiness, and increased absenteeism. In May 2011, the Veteran reported that his current occupation had been impacted by sudden onsets of pain and by long-term pain. He also stated that he had to pass up some jobs that required more physical exertion, and he had been limited in the jobs to which he could apply for the same reason. Finally, the record shows the Veteran had pursued other job positions to reduce his symptoms and even contemplated moving to a different state for a warmer climate. The Board has also considered whether the Veteran's traumatic thoracolumbar spine disease 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 April 2011, the Veteran reported that he had constant pain during flare-ups that became severe and incapacitating, during which he could hardly move. He had difficulty standing and tying his shoes and was unable to lift his son or buckle him in his car seat during these flare-ups. In addition, the April 2011 VA examination indicates the Veteran had problems with weakness, fatigue, and pain as the result of his back disability. The Veteran's back disability affected his mood and interactions with others, and he was unable to help with family activities. Flare-ups prevented him from cooking, shopping, lifting, and bending over. Here, the Board 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). Based on a review of all the evidence, and resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence supports an initial disability rating of 40 percent, but no more, for traumatic thoracolumbar spine disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. However, the Board finds the criteria for a disability rating in excess of 40 percent have not been met at any time during the appeal. The objective medical evidence does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine or functional impairment comparable thereto. 38 C.F.R. § 4.71a, Diagnostic Code 5242. In addition, the record does not reflect incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). As noted above, the Board has considered the Veteran's lay statements and the evidence with respect to the level of functional loss and has granted an increased disability rating accordingly. Additionally, this issue has been reviewed with consideration of whether staged ratings would be warranted at any time during the appeal period. However, the evidence does not show that a rating in excess of 40 percent would be warranted for the Veteran's service-connected traumatic thoracolumbar spine disease at any time. 38 U.S.C.A. § 5110; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 traumatic thoracolumbar spine disease 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 5242. Throughout the appeal period, the Veteran's service-connected back disability was manifested by chronic pain, weakness, stiffness, tenderness, spasm, and decreased 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). As a result, the Board finds the criteria for an initial disability rating of 40 percent, but no more, for traumatic thoracolumbar spine disease have been met throughout the appeal period. In reaching this decision, the Board has considered the doctrine of reasonable doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Total disability rating based on individual unemployability (TDIU) 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). Here, the Veteran has not asserted that he is totally unemployable as the result of his service-connected back disability, and the evidence shows that he has continued to work full-time throughout the pendency of the appeal. Accordingly, the Board concludes that a claim for a TDIU has not been raised. ORDER Entitlement to an initial disability rating of 40 percent, but no more, for traumatic thoracolumbar spine disease is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs