Citation Nr: 1339563 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 10-29 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES Entitlement to increases in the staged ratings (10 percent prior to December 20, 2012 and 20 percent from that date) assigned for low back strain with intervertebral disc syndrome (IVDS). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 2002 to February 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and a 10 percent rating for lumbar strain. In April 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In October 2012 the Board remanded the matter for additional development. A March 2013 rating decision increased the rating to 20 percent, effective December 20, 2012, and also recognized IVDS as part of the service connected low back disability entity. The issue is characterized to reflect that staged ratings are assigned, and that both "stages" remain on appeal. The March 2013 RO rating decision also awarded service connection and separate ratings for radiculopathy of the lower extremities (10 percent for the right and 20 percent for the left), effective from July 2009. The Veteran has not filed a notice of disagreement with that determination, and the ratings for the radiculopathy are not before the Board. As was noted in the Board's October 2012 remand, the Veteran has presented an allegation of clear and unmistakable error (CUE) in a prior final denial of service connection for her back disability. The Board referred this matter to the Agency of Original Jurisdiction (AOJ) for clarification and any appropriate action. It does not appear from the record that any action has been taken, and in November 2012, the Veteran submitted a written statement reiterating her dispute with the September 2006 denial. To the extent that the Veteran's contentions continue to present a claim of CUE in a prior final RO rating decision, such matter has still not been adjudicated by the AOJ, and the Board does not have jurisdiction in the matter. It is referred to the AOJ for clarification and any appropriate action. FINDINGS OF FACT 1. Prior to December 20, 2011, the Veteran's lumbar strain with IVDS was manifested by muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; it was not at any time during this period manifested by: limitation of thoracolumbar spine flexion to 60 degrees, limitation of combined thoracolumbar spine range of motion to 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis, neurological symptoms other than radiculopathy of lower extremities, or incapacitating episodes with total duration of at least two weeks during a 12 month period. 2. Beginning December 20, 2011, the Veteran's lumbar strain with IVDS is shown to have manifested by incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during a 12 month period; it has not at any time during this period been manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees, ankylosis of the entire thoracolumbar spine, or neurological symptoms other than radiculopathy of both lower extremities. CONCLUSION OF LAW The Veteran's service connected low back disability warrants "staged" rating of 10 percent prior to December 20, 2011, and 20 percent from that date. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5257, 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A June 2010 statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating, and readjudicated the matter. The Veteran has had opportunity to respond. It is not alleged that notice in this case was less than adequate. See Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran's pertinent treatment records have been secured. She was provided VA examinations in October 2009 and December 2012. A review of the examination reports found that they contain sufficient findings to provide probative medical evidence adequate for rating purposes. The Board finds that the present record includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. The Board finds there has been compliance with the instructions of the Board's October 2012 remand. Notably, the processing of the remand resulted in assistance to the Veteran in obtaining private treatment records and arranging for a contemporaneous VA examination. (The completion of these actions has led to a partial grant of the appeal.) VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, at the April 2012 hearing, the undersigned discussed the elements that were lacking to substantiate the claim (i.e., evidence of incapacitating episodes of greater duration and/or showing greater limitation of motion or functional loss). Through her discussion at the hearing , the Veteran demonstrated that she has knowledge of the elements necessary to substantiate the claim. The Board finds that the mandates of Bryant were satisfied. Legal Criteria, Factual Background and Analysis The Veteran claims that her service connected lumbar strain with disc disease has been more severe than reflected by the staged ratings assigned. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). "Staged" ratings may be warranted if the claim involves the initial rating assigned with a grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's statements describing her symptoms and condition are competent evidence to the extent that she can describe what she experiences. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.) The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected low back disability encompasses both strain (originally rated under Code 5237) and disc disease (rated under Code 5243). While both of these diagnostic codes provide for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), Code 5243, provides for alternatively rating based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Consequently, rating under Code 5243 is potentially more advantageous to the Veteran, and that is the appropriate Code assigned. 38 C.F.R. § 4.71a. Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion for 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (2) For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of the thoracolumbar spine is to 240 degrees. (3) In exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a. Under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes, a 10 percent rating is warranted for 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 for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes if such episodes had a total duration of at least four weeks but less than six weeks, during the past 12 months. A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) following Code 5243 provides that an incapacitating episode is 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An October 2009 VA examination report shows that the Veteran reported symptoms of stiffness, spasms, decreased motion, paresthesia, and numbness. She denied fatigue but reported weakness of the spine. She denied experiencing any bladder problems. She described constant moderate pain of the lower and middle portions of the spine, traveling to the legs and arms. The pain was exacerbated by physical activity and stress, relieved by rest and by Percocet. She reported that she could function during the pain with medication. She indicated that during flare-ups she experiences functional impairment described as pain and limitation of motion. She was being treated with injections and medication, and had not had any surgery or hospitalization for the disability. She indicated that "her condition has not resulted in any incapacitation." She cited functional limitations involving being unable to run, exercise, do sit-ups, or do any household chores. Physical examination revealed normal posture, normal gait, and steady walking without need of any assistive device for ambulation. There was no radiating pain on movement. There was no muscle spasm or tenderness. There was no guarding of movement and no weakness. Muscle tone and musculature were normal. Straight leg raise testing was positive bilaterally. Lasegue's sign was negative. There was no atrophy in the limbs and no ankylosis of the thoracolumbar spine. Range of motion test results were noted to be normal, including: 90 degrees flexion, 30 degrees extension, 30 degrees right and left lateral flexion, 30 degrees right and left rotation. Painful motion was noted to begin at 80 degrees for flexion and at 25 degrees extension. Results were unchanged with repetitive motion testing. The examiner commented that joint function of the spine was additionally limited by pain after repetitive use, but was not limited by factors such as fatigue, weakness, lack of endurance and incoordination. The examiner found that there was otherwise no quantifiable additional limitation of any pertinent range of motion. October 2009 VA examination found no sensory deficits from the L1-L5 spinal area nor from the S1 spinal area, and there was no lumbosacral motor weakness. Right and left lower extremity reflex testing both revealed knee jerk 2+ and ankle jerk 2+. The lower extremities showed no signs of pathologic reflexes and there were normal cutaneous reflexes. The examiner found no signs of Lumbar Intervertebral Disc Syndrome with chronic and permanent nerve root involvement. Lumbar spine x-rays were within normal limits. The diagnosis was lumbar strain with subjective chronic dull pain with flare-ups during activity, with pain traveling down the left leg at times. The examiner noted that the Veteran stated that an MRI showed herniated lumbar disc and degenerative joint disease and that she was receiving pain management treatment for her back. The examiner found that, objectively, the Veteran had pain in the low back "with preserved ROM [range of motion]." The examiner stated that the effect of the disability upon the Veteran's usual occupational function and her daily activity was that she may not lift over 25 pounds and not push over 50 pounds. Private treatment reports from Johnston Pain Management document treatment for the Veteran's complaints of back pain throughout the period on appeal. These reports include documentation of impressions of lumbar radiculopathy and discogenic disease from prior to and throughout the period on appeal. Otherwise, the reports show the Veteran's complaints and manifestations of symptomatology as essentially consistent with the other statements and evidence, including the October 2009 VA examination report. The Johnston Pain Management records do not otherwise present any objective clinical findings pertinent to application of the relevant rating criteria. The Veteran's testimony at the April 2012 Board hearing included her assertion that the back disability should be rated with consideration of the involvement of degenerative disc disease. She also testified that she believed that her range of motion was not as good as was reported on October 2009 VA examination; she testified that she gets muscle spasms and that the impairment "has gotten worse than what is documented." She indicated that she receives injections to alleviate pain, effective for approximately a couple of weeks. She stated that she takes other, including narcotic, medication to control pain. A December 20, 2012 VA examination report shows diagnoses of: lumbar strain, lumbar spine degenerative disc disease, and thoracic myofascial syndrome. The Veteran described symptoms featuring persistent chronic thoracolumbar pain of "4/10" severity, with intermittent flares precipitated by sitting more than 15 to 20 minutes or standing more than one hour or walking more than two miles. The flare-up pain was described as "6-10/10" in severity. The Veteran related that she sometimes has radiation of moderate pain down the posterolateral left leg, with lesser such radiation in the right leg. She also reported mild numbness of the left baby toe and spasms of the upper back. The Veteran described medical treatment including medications, and indicated that during flare-ups she experiences functional impact characterized as "walking even to the bathroom is very very difficult." Initial range of motion measurements revealed: forward flexion to 80 degrees, with painful motion beginning at 70 degrees; extension to 30 degrees with painful motion beginning at 20 degrees; right lateral flexion to 35 degrees; left lateral flexion to 35 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. After repetitive use testing, measurement revealed: forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 35 degrees, left lateral flexion to 35 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The VA examiner found that the Veteran's additional limitation in spinal range of motion and function following repetitive-use testing involved: less movement than normal; weakened movement; disturbance of locomotion; and interference with sitting, standing and/or weight-bearing. The examiner noted that the Veteran experienced diffuse mid thoracic spine midline tenderness and diffuse bilateral mid thoracic tenderness, but not much lumbar tenderness at the time of the examination. The Veteran had guarding and/or muscle spasm of the thoracolumbar spine that was noted to be severe enough to cause abnormal gait. Muscle strength testing revealed normal strength "5/5" in all tested areas. The Veteran did not have muscle atrophy. Reflex testing revealed normal "2+" reflexes in both knees and ankles. Sensory examination revealed normal sensation to light touch for right upper anterior thigh (L2), bilateral thigh/knee (L3/4), and left lower leg/ankle (L4/L5/S1). There was decreased sensation to light touch for left upper anterior thigh (L2), right lower leg/ankle (L4/L5/S1), and bilateral feet/toes (L5). Straight leg testing was negative bilaterally. The examiner noted that the Veteran had some symptoms of radiculopathy, featuring: mild intermittent pain of the right lower extremity, moderate intermittent pain of the left lower extremity, and mild numbness of the left lower extremity. The examiner found bilateral involvement of "L4/L5/S1/S2/S3 nerve roots (sciatic nerve)." The examiner characterized the severity of radiculopathy as mild on the right side and moderate on the left side. The examiner found no other pertinent neurologic abnormalities. The December 2012 VA examiner noted that the Veteran had Intervertebral Disc Syndrome with incapacitating episodes (requiring prescribed bed rest and treatment by a physician) of at least 2 weeks but less than 4 weeks total duration over the prior 12 months. The report shows that the Veteran wore a "stretchy brace most of the time for back condition." She had an antalgic gait. Arthritis was not noted on diagnostic imaging, and there was no vertebral fracture. It was noted that an MRI showed diffuse disc bulges at L4-L5 and L5-S1. The examination report also shows "Normal radiographs of the thoracic spine" and "Unremarkable radiographs of the lumbar spine." The VA examiner concluded that the Veteran's "degenerative disc disease was present in 2005 but not diagnosed since no MRI was done." Regarding functional impact, the VA examiner noted that the Veteran's disability caused her to have to "stop" her work as a gymnastics instructor for a time in September 2012 because she was unable to lift, move things around, or catch students that may fall. The Board notes that the Veteran's private treatment records from Johnston Pain Management clarify the matter, documenting that in October 2012 the Veteran received an injection with the notation that "she is able to 'bend' more after injection and her 'work' improves as gymnastic instructor." A September 2012 private report from Johnston Pain Management shows that the Veteran "[c]ontinues to work full time and be physically active." Multiple other records from around this time show that the Veteran was continuing her full time work while managing and treating her back disability. For the period prior to December 20, 2012, a 10 percent rating is in effect on the basis of limitation of motion. A higher rating for that period would require showing that forward flexion of the thoracolumbar spine was not greater than 60 degrees, or that the combined range of motion of the thoracolumbar spine was not greater than 120 degrees, or 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, or that there was ankylosis of the spine, or that IVDS manifested in incapacitating episodes (requiring physician care and prescribed bed rest) having a total duration of at least two weeks during a 12 month period. The evidence does not show that any of these criteria were met prior to December 20, 2011. The detailed range of motion testing from the October 2009 VA examination report shows, even accounting for pain and functional loss with repetitive use, that forward flexion was greater than 60 degrees and combined range of motion was greater than 120 degrees. There is no evidence of range of motion measurements from this period contradicting the probative October 2009 VA examination report. Neither the 2009 VA examination report, nor any other evidence from the period, shows muscle spasm or guarding of such severity as to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Although the Veteran subjectively reported experiencing muscle spasms, the detailed October 2009 VA examination found that the Veteran had a normal gait at that time, and none of the clinical signs of sufficiently severe muscle spasm for a 20 percent rating were shown in this or any other evidence from the period. Furthermore, there is no evidence or suggestion that the spine was ankylosed. However, accepting that the Veteran had IVDS prior to December 20, 2012, a 20 percent rating may be awarded from December 20, 2011. Notably, the October 2009 VA examination report shows that the Veteran indicated that "her condition has not resulted in any incapacitation;" and no evidence of record shows incapacitating episodes prior to December 20, 2011. However, on December 20, 2012 VA examination the examiner noted that the Veteran had IVDS with incapacitating episodes (prescribed bed rest and treatment by a physician) of at least 2 weeks but less than 4 weeks total duration over the prior 12 months. This finding establishes that during the year from December 20, 2011 to December 20, 2012 the Veteran had incapacitating episodes of at least 2 weeks, but least than 4 weeks (meeting the criteria for a 20 percent rating based on incapacitating episodes during the year the incapacitating episodes occurred). There is no evidence that the frequency of incapacitating episodes has increased or decreased since. Accordingly, the Board finds that a 20 percent rating is warranted from the earlier effective date of December 20, 2011. A rating in excess of the assigned 20 percent may otherwise be warranted if the evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis of the entire thoracolumbar spine. The detailed range of motion testing from the December 2012 VA examination report shows, even accounting for pain and functional loss with repetitive use, that forward flexion was greater than 30 degrees. There is no evidence of range of motion less than found on December 2012 VA examination. While the report of the examination shows that the Veteran had muscle spasms severe enough to cause abnormal gait, such manifestation is specifically contemplated in the criteria for a 20 percent rating. Furthermore, there is no evidence or allegation that the Veteran's spine is ankylosed. In addition, the record does not show neurological manifestations of spine disability other than radiculopathy of the lower extremities (ratings for which are not at issue herein. The Veteran described some pain traveling from the spine to the arms on October 2009 VA examination; however, no medical professional has diagnosed any upper extremity neurological deficits secondary to the service-connected low back disability. The December 2012 VA examination which found radiculopathy of the lower extremities specifically found that there were no additional pertinent neurological impairments. Accordingly, a rating in excess of 20 percent is not warranted. The Board has considered whether this claim warrants referral for consideration of an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the manifestations of the Veteran's service-connected thoracolumbar spine disability to the rating schedule, the Board finds that the symptoms and impairment of function found during each stage are wholly encompassed by the schedular criteria for the ratings assigned, and consequently those criteria are not inadequate, and referral of this matter for consideration of an extraschedular rating is not warranted. Finally, there is also no evidence (or allegation) that the Veteran's back disability with radiculopathy has rendered her unemployable. The December 2012 VA examination report notes that the Veteran had to "stop" her work as a gymnastics instructor in September 2012 due to back pain. However, this comment refers to no more than a temporary interruption in her work rather than an assertion of unemployability. A September 2012 report from Johnston Pain Management shows that the Veteran "[c]ontinues to work full time and be physically active." A private treatment record from Johnston Pain Management shows that in October 2012 the Veteran received an injection with the notation that "she is able to 'bend' more after injection and her 'work' improves as gymnastic instructor." Other records show that the Veteran had been performing full time work while managing and treating her back disability. Notably, it is not alleged that the Veteran is rendered unemployable by her service-connected back disability. Hence, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 10 percent for the Veteran's service connected low back disability prior to December 20, 2011 is denied. A "staged" increased (to 20 percent) rating for the low back disability is granted from the earlier effective date of December 20, 2011, subject to the regulations governing payment of monetary awards. A rating in excess of 20 percent for the low back disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs