Citation Nr: 1417543 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 96-51 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating higher than 20 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Nancy Foti, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty in the military from July 1966 to July 1969 and from April to December 1971. This appeal to the Board of Veterans' Appeals (Board) is from a November 1993 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). That decision, in relevant part, denied the Veteran's claim for a rating higher than 20 percent for his low back disability - lumbosacral (lumbar) strain. In March 1998, as support for a higher rating for this disability, the Veteran testified at a hearing in Washington, DC, and more recently at a video-conference hearing in May 2003 before a Veterans Law Judge (VLJ) of the Board that since has retired. So, in an April 2006 letter, the Veteran resultantly was advised of this and offered another hearing before a different VLJ that would ultimately decide this appeal. In a May 2006 response, however, the Veteran indicated he did not want another hearing. In July 2006, the Board denied his claim for a rating higher than 20 percent for his low back disability. He appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (CAVC/Court). In an April 2008 Order, granting a joint motion, the Court vacated the Board's decision and remanded the claim to the Board for further development and readjudication in compliance with directives specified in the joint motion. To comply with the Court's Order, the Board in turn remanded the claim in January 2009 to provide the Veteran another VA medical examination reassessing the severity of his low back disability. He subsequently had this requested examination in August 2009 and a follow-up neurological examination in October 2009. Although not mentioned in the Court-granted joint motion, the Board also directed the RO or Appeals Management Center (AMC) to provide the Veteran additional notice required by the Veterans Claims Assistance Act (VCAA) - and, in particular, the holdings in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), and Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008). Vazquez since has since been overturned, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In any event, the RO provided this additional notice in an April 2009 letter and, after also considering the results of the August 2009 VA compensation examination and the follow-up neurological examination in October 2009, issued a supplemental statement of the case (SSOC) in February 2010 continuing to deny this claim for a rating higher than 20 percent for the low back disability. Upon receiving the file back from remand, the Board issued another decision in November 2010 again denying this claim for a rating higher than 20 percent for the low back disability, and the Veteran again appealed to the CAVC/Court. In a May 2011 Order, granting another joint motion, the Court again vacated the Board's decision and again remanded the claim to the Board for further development and readjudication in compliance with directives specified in the joint motion. In compliance with the May 2011 order, granting the joint motion from the parties, the Board once again remanded the claim to the RO for yet another VA examination to determine whether the Veteran has intervertebral disc syndrome (IVDS), i.e.., disc disease, and, if he does, to determine whether it is part and parcel of his service-connected low back disability, i.e., his lumbar (lumbosacral) strain, or proximately due to, the result of, or aggravated by this service-connected disability to also be considered service connected on this secondary basis. The Veteran had this requested VA examination in March 2012. However, in finding that the Veteran did not have IVDS of his thoracolumbar spine, the examiner did not consider the previous diagnosis of this condition in medical evidence dated in 1995 or provide any explanation or opinion as to a change in diagnosis or the reason the Veteran no longer had it. Therefore, the claim was remanded again in December 2012 to obtain a supplemental opinion from the examiner addressing these deficiencies. The requested opinion was obtained in January 2013, albeit from a different VA examiner, and the claim was readjudicated in an August 2013 SSOC. It is now again before the Board for further appellate review. FINDING OF FACT The Veteran's low back disability is not manifested by severe limitation of motion of the lumbar spine, listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion, IVDS, forward flexion of 30 degrees or less, or ankylosis of the spine. CONCLUSION OF LAW The criteria are not met for a rating higher than 20 percent for the lumbosacral strain. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5290, 5295 (effective prior to September 26, 2003); Diagnostic Codes 5237 (effective September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran was provided this required notice and information in letters dated in September 2004 and April 2009. Neither letter was issued prior to the RO's initial adjudication of the claim in November 1993, the preferred sequence, but only because the VCAA had not even been enacted at the time of that initial adjudication of the claim. Rather, the VCAA was not enacted until November 2000. And the Court has clarified that, in this circumstance, VA does not have to vitiate the initial decision and start the whole adjudicatory process anew, as if the initial adjudication never occurred; instead, VA need only provide any necessary VCAA notice and then readjudicate the claim such that the intended purpose of the notice is served inasmuch as the Veteran is given ample opportunity to participate effectively in the adjudication of his claim and not prejudiced. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). And here, after the notice letters were provided, the claim was most recently readjudicated in an August 2013 SSOC, including considering the evidence received in response to the notices, thereby rectifying ("curing") the timing defect in the provision of those notices. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims for increased ratings for disabilities that already have been determined service connected in years past, the Court has held that in order to satisfy the first notice element VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vasquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vasquez-Flores I), overruled in part sub. nom. Vasquez-Florez/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vasquez-Flores II). Further, the claimant must be notified that a disability rating will be determined by applying relevant Disability Codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), 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. Id. Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. Except when VCAA notice as to how to substantiate a claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided. See Vazquez-Flores, 24 Vet. App. at 106-107. And VA is not required to apprise him of alternative DCs or daily-life evidence, only instead provide what amounts to "generic" notice. Notably, as the pleading party, the Veteran, not VA, has the evidentiary burden of proof for showing how a VCAA notice error in timing or content is prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). And he and his representative have not made any such pleading or allegation in this instance. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran in obtaining potentially relevant records and providing an examination or medical opinion when necessary to make a decision on the claim. This additional obligation does not apply if there is no reasonable possibility the assistance would aid in substantiating the claim. To this end, the Veteran's VA treatment records, identified private treatment records, Social Security Administration (SSA) records and additional lay statements have been obtained and associated with his claims file for consideration. The Veteran was also examined for VA compensation purposes in August 2000, October 2004, August 2009, October 2009, and March 2012. And as has also already been noted, an additional medical opinion was obtained as well in January 2013. Collectively, these examinations and opinion contain a description of the history of the disability at issue, document and consider the relevant medical facts and principles, and record the relevant findings necessary for rating the Veteran's low back disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). And unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Here, in an April 2013 submission, the Veteran's representative argued that the January 2013 opinion was still inadequate. First, she stated that the opinion was rendered by an internist and argued that this examiner does not have the requisite expertise to evaluate musculoskeletal conditions such as a lumbosacral strain and IVDS. However, in Cox v. Nicholson, 20 Vet. App. 563 (2007), the Court held that even a nurse practitioner, having completed medical education and training, satisfied the regulation governing medical examinations as someone competent to provide medical evidence in a case involving, in part, the evaluation of the assigned disability rating for a low back condition. So according to the holding in Cox, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Indeed, as the January 2013 examiner in this case is a medical doctor, his education and training is greater than that of a nurse practitioner, and therefore certainly sufficient to diagnose and comment on the presence versus absence of IVDS. The Board resultantly finds no merit in the bare assertion by the Veteran's representative that this examiner does not have the required expertise to evaluate the Veteran's condition. Second, the representative argued that the opinion was based only on a review of the file, and the examiner did not provide an explanation for why a physical examination was not necessary. However, the examiner was asked to comment on whether the Veteran has IVDS, and to specifically address a February 1995 treatment record suggesting he does. The examiner accomplished these tasks and provided a detailed explanation supporting his opinion, which is where most of the probative value of a medical opinion is derived - not, instead, just from the file review and examination of the Veteran. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). He is not required to provide an explanation as to why no further examination is warranted, particularly in light of the fact that his review of the claims file included physical examination findings from the March 2012 VA examination, and neither the Veteran nor his representative has asserted that the condition has changed significantly since that time. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Third, while the examiner based his conclusion that IVDS was not present on records that do not show radiculopathy, the Veteran's representative submitted treatise evidence indicating that nerve impingement (and resulting radiculopathy) only occurs in 3 percent of cases of herniated discs, and therefore it was reasonable to conclude that radiculopathy is not present in all cases of IVDS. The representative's argument appears to equate a herniated disc to IVDS, regardless of whether radiculopathy is present. However, the examiner stated that IVDS combines symptoms of lower back pain, pain in the thigh, and sciatica, with wasting and loss of Achilles and patellar reflexes. It is caused by compressive radiculopathy. In other words, he is stating that radiculopathy is a necessary component of IVDS, i.e., part of the set of signs and symptoms that combine to form the syndrome. The treatise evidence submitted by the representative merely states that herniated discs and spinal stenosis may result in nerve impingement. It does not contradict the examiner's definition of IVDS or directly address what constitutes IVDS in any way. Rather, it is the representative who equates IVDS with a herniated disc or spinal stenosis, without any support for her statement. As she has not been shown to have the necessary knowledge or expertise to render competent medical opinions, her statements do not raise any new issues that need to be addressed by a VA examiner prior to adjudication of the claim. See 38 C.F.R. § 3.159(a)(1) and (a)(2), defining and distinguishing competent medical versus lay evidence. VA's duty to assist with respect to obtaining a VA examination or opinion for this claim has been satisfied. 38 C.F.R. § 3.159(c)(4). The prior remand directives in this case have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand not required under Stegall where there was substantial, even if not exact, compliance with remand directives). Finally, the Veteran testified at various RO and Board hearings as part of his appeal. These hearings were adequate as the personnel conducting them explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the Veteran's position. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Whether an Increased Rating is Warranted Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation 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 (2013). All reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2013). VA must assess the level of disability over time and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged" rating. And this practice is employed irrespective of whether it is an initial or established rating. See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In the established-rating context, however, the relevant temporal focus is on the severity of the disability since the year immediately preceding the filing of the increased-rating claim until VA makes a decision on the claim. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that VA adjudicators must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires that VA regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The Veteran presently has a 20 percent rating for his lumbosacral strain under Diagnostic Code (DC) 5295-5292. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Since the filing of this claim, the criteria for rating disabilities of the spine were amended on two occasions. The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased rating for the Veteran's lumbar strain is warranted. Either the old or the new rating criteria may be used, whichever are more favorable to the Veteran, but the new criteria only may be applied prospectively from their effective date. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003); and VAOPGCPREC 3-2000 (Apr. 10, 2000). Under the "old criteria," a higher 40 percent rating under DC 5295 requires severe symptoms with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the foregoing with abnormal mobility on forced motion. See 38 C.F.R. § 4.71a, DC 5295 (2002). Also under the "old criteria," a higher 40 percent rating under DC 5292 is assigned for severe limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5292 (2002). Descriptive terms such as "severe" are not defined in VA's Rating Schedule. However, the Rating Schedule provides some guidance by listing normal ranges of motion of the thoracolumbar spine (thoracic and lumbar segments) for VA compensation purposes as 90 degrees of forward flexion, 30 degrees of backward extension, 30 degrees of lateral flexion, and 30 degrees of rotation. See Schedule for Rating Disabilities effective September 26, 2003, Plate V, 68 Fed. Reg. 51,458 (Aug. 27, 2003). Under the revised criteria, effective September 26, 2003, known as the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating of 40 percent requires forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DCs 5235-5242 (2013). Under both the "old" Diagnostic Code 5289 and the General Rating Formula, favorable ankylosis of the thoracolumbar spine warrants a 40 percent disability rating, and unfavorable ankylosis warrants a 50 percent disability rating. Id.; 38 C.F.R. § 4.71a, DC 5289 (2002); 38 C.F.R. § 4.71a, DCs 5235-5242 (2013). Specific range-of-motion testing was performed during the Veteran's VA examinations in August 2000, October 2004, August 2009, and March 2012. In August 2000, the Veteran demonstrated flexion of 75 degrees, extension of 30 degrees, and right and left lateral flexion of 35 degrees. Rotation movements were not recorded at that time. There was no significant functional loss due to flare-ups with extended use. When examined in October 2004, his lumbar spine demonstrated flexion of 40 degrees, extension of 20 degrees, right and left lateral flexion of 20 degrees, and right and left rotation of 45 degrees. There was no objective evidence of painful motion and no additional limitation of motion due to pain, fatigue, or lack of endurance following repetitive use When examined in August 2009, his lumbar spine demonstrated flexion of 60 degrees, extension of 20 degrees, right and left lateral flexion of 30 degrees, and right and left rotation of 40 degrees. All movements caused pain, but no additional limitation of motion or functional loss was observed due to pain, fatigue, weakness, or lack of endurance following repetitive use. Finally, during the March 2012 examination, the Veteran demonstrated 80 degrees of flexion, 15 degrees of extension, right and left lateral flexion of 15 degrees, and right and left rotation of 10 degrees. These findings represent the greatest amount of limited motion when considering the onset point of the pain and repetitive use. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell, 13 Vet. App. at 34; Hicks v. Brown, 8 Vet. App. 417, 421 (1995). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating to apply § 4.59 even in cases that do not involve arthritis). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although as already mentioned pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (i.e., rated as 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Additional records from August 1992 reflect "good" range of motion. In May 1993, the Veteran was noted to have "slightly limited" range of motion of the trunk. In June 1993, he was able to flex forward to within 6 inches of the floor, presumably when reaching with his hands. These findings, even the worst of them, do not reflect the marked limitation of forward bending in a standing position or loss of lateral motion contemplated by DC 5295. Moreover, there is no indication in this medical evidence of listing of the whole spine to the opposite side, positive Goldwaithe's sign, or abnormal mobility with forced motion. Similarly, the Veteran's combined range of motion (the sum of range of motion measurements for each vector) was, at worst, 145 degrees, during the March 2012 VA examination. This corresponds to a 20 percent rating under the revised General Rating Formula and does not equate to an overall "severe" limitation of motion under DC 5292. Flexion of 30 degrees or less has not been demonstrated to warrant a higher rating under the General Rating Formula. The evidence also does not demonstrate any ankylosis during the appeal period, either favorable or unfavorable of this segment of the Veteran's spine, much less of his entire spine when additionally considering the adjacent cervical segment. Therefore, a rating higher than the currently assigned 20 percent is not warranted on this other basis, either. Note (5) in 38 C.F.R. § 4.71a, DCs 5235-42, provides that, 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. Ankylosis also has been defined in precedent cases as stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. This type of impairment simply has not been shown. As also noted earlier, the rating criteria were amended twice during the Veteran's appeal. The first amendment, which pertains to IVDS, effective as of September 23, 2002, does not apply to this case because the Veteran's lumbar strain does not include this additional condition of disc disease. The Board has considered his complaints of radicular symptoms down both lower extremities. VA treatment records as far back as 1993 note his complaints of low back pain, with pain and/or numbness down both lower extremities. A February 1995 entry also notes a diagnosis of lumbosacral intervertebral disease. However, as noted by the January 2013 VA examiner, the February 1995 physician ordered a follow-up visit to include nerve conduction study (NCS) and electromyography (EMG). The follow-up took place in March 1995, and the EMG/NCS and physical examination were normal. The assessment of the Veteran's condition was changed to "low back pain." Although not specifically discussed by the examiner, an additional EMG in August 2000 was also normal, albeit incomplete, as the Veteran stopped the test himself. Additional VA records from November 2004 and October 2009 also reflect normal NCS's. The January 2013 VA examiner correctly stated that there was no diagnosis of radiculopathy in the Veteran's records (only, instead, what amounted to a provisional diagnosis that later was ruled out). He explained that IVDS is a syndrome combining symptoms of lower back pain, pain in the thigh, and sciatica with wasting and loss of Achilles and patellar reflexes. He concluded there was no objective evidence of IVDS in this case to disagree with the March 2012 VA examiner, who had concluded the Veteran did not have IVDS. Similarly, the revised rating criteria also include the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5243 (2013). Note (1) in this code explains that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. A review of the evidence does not show that the Veteran was prescribed any bed rest by any physician at any point during the appeal period. Therefore, a rating under this Formula would not be appropriate inasmuch as he is not shown to have had any incapacitating episodes by definition. Finally, the General Rating Formula provides that associated objective neurologic abnormalities are to be separately evaluated. However, while the Veteran has complained of radiating pain and numbness in his lower extremities during the period when the General Rating Formula is applicable, i.e. since September 26, 2003, there is no diagnosis of radiculopathy associated with his service-connected low back disability (meaning his lumbosacral strain), and the available EMG/NCS studies showed normal findings, as discussed above. He has not complained of, and the record does not reflect, any bowel or bladder incontinence associated with his lumbar spine condition. Therefore, separate ratings for neurologic abnormalities are not warranted in this instance. In adjudicating a claim the Board must assess the competence and credibility of the Veteran and other lay witnesses. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board accepts that the Veteran and other lay witnesses are competent to give written and oral testimony about what they personally have observed or what the Veteran has personally experienced; for example, they are competent to report that he experiences certain symptoms such as pain, limited mobility, and numbness. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, when viewed with the medical evidence of record, their account of his symptomatology does not fully correspond with the documented medical findings. For example, the Veteran testified in May 2003 that he experienced prostrating attacks up to three times per week, and these would sometimes cause him to seek medical treatment. However, his treatment records contain no mention of any prostrating attacks. The October 2004 VA examiner indicated the Veteran had presented with symptom magnification (meaning over stating or exaggerating them), and that his subjective complaints were significantly out of proportion to the anatomical defects present. Therefore, while the Board has considered the Veteran's statements made in support of his claim, they are not wholly credible in determining the severity of his low back disability, especially in relation to the specific criteria of the Rating Schedule. His inconsistent written and oral testimony, also his judged behavior during his VA examination, tends to undermine his credibility and in turn lessen the probative value of his lay testimony and statements. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record"). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). A separate May 2009 statement from the Veteran's wife noted his low back and lower extremity pain, as well as some of the treatment he uses for his condition. This statement is generally consistent with the medical evidence, but does not indicate his condition is manifested by any of the required criteria for a higher rating. Finally, in evaluating the Veteran's claim for a higher rating, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which held that the benefit-of-the-doubt rule applies to determinations of whether a symptom should be attributed to a service-connected condition. To this end, the Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition in considering whether he is entitled to an extra-schedular rating. According to the regulation, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 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, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, 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 lumbar spine disability with the established criteria found in the Rating Schedule for this disability shows that the rating criteria reasonably describe his disability level and symptomatology, as discussed above. The rating criteria specifically contemplate his low back pain and consequent limited range of motion, as well as additional symptoms and impairments such as ankylosis, greater levels of limitation of motion, and neurologic abnormalities, which are not demonstrated by the evidence. There is no indication his disability results in any symptoms that fall so far outside the purview of the Rating Schedule as to render it inadequate. Even if the Board were to find that step one of Thun had been satisfied, extra-schedular referral still would not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc). The Veteran's lumbar spine condition does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). He has not been hospitalized for this condition, certainly not on what could be considered a frequent or recurrent basis. As to employment, he has indicated that he stopped working as a carpenter in 1991 because of his low back disability. However, the record shows that he actually stopped working because of his service-connected posttraumatic stress disorder (PTSD), which accordingly has been assigned a 100 percent disability rating, i.e., the highest possible, effectively since 1991 when he last worked, to compensate him for this resultant total occupational and social impairment on account of this other condition. 38 C.F.R. § 4.130, DC 9411. Records from the SSA also show that he has been awarded disability benefits from this other Federal agency based on his diagnoses of PTSD and major depression, with no indication that his low back disability was also a factor in that determination. Also significant is the fact that the August 2009 VA examination report includes a medical opinion indicating the service- connected low back disability is only relatively "mild" in comparison. These findings do not indicate this disability has resulted in marked interference with employment. Further concerning this, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. This is to say, the Board is not disputing that the Veteran's service-connected low back disability may interfere with his ability to work. But this alone is not tantamount to concluding there is marked interference with his employment, meaning above and beyond that contemplated by the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Therefore, referral for an extra-schedular rating is not warranted in this case. ORDER The claim of entitlement to a rating higher than 20 percent for the lumbosacral strain is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs