Citation Nr: 1417586 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 04-36 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 20 percent for the Veteran's service-connected lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from April 1987 to March 1989, and from September 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that granted a 20 percent disability evaluation for the service-connected lumbosacral strain disability, but denied an evaluation in excess of 20 percent. In March 2008, June 2009, February 2011, and September 2011, the Board remanded the claim for additional development. In August 2012, the Board denied the claim. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In April 2013, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's August 2012 decision. That same month, the Court issued an Order vacating the August 2012 Board decision. In October 2013, the Board remanded the claim for additional development. The Veteran testified at a January 2005 hearing before a Decision Review Officer at the RO. A transcript of the proceeding is of record. In addition, in January 2008, he testified during a hearing held at the RO before a Veterans Law Judge. A transcript of that proceeding is of record and has been associated with the claims file. The Veteran was later notified that the Veterans Law Judge who conducted the hearing was no longer employed with the Board. The Veteran was afforded the opportunity to testify at another hearing, but did not respond within 30 days as requested. Therefore, the Board may continue with the Veteran's appeal. FINDING OF FACT The Veteran's service-connected lumbosacral strain is shown to have been productive of pain on flexion at 50 degrees; but not a severe limitation of motion, listing of whole spine to opposite side, positive Goldthwait's sign, or abnormal mobility on forced motion, nor favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for service-connected lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5240, 5292, 5293, 5295 (as in effect prior to September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (as in effect September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to an increased rating for his service-connected lumbosacral strain. In a statement, dated in April 2003, he asserted that he had missed almost two weeks of work that year, and that he had "been denied numerous jobs because of my pain." He stated that he has extreme pain and severe limitations, to include locking up and giving out of his legs, with unexpected spasms and cramps. During his hearing, held in January 2008, he testified that he had symptoms that included excruciating pain, difficulty standing, that he could only sit for about two hours, and that he had difficulty using stairs. He indicated that he was using some leave at his job due to his back symptoms. The Veteran's spouse testified that he had not worked for about one to two years, that his back symptoms made obtaining a job difficult, and that he was unable to do certain things around the house, such as lifting. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2013). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). With regard to the history of the disability in issue, the Veteran's service treatment reports show that he was treated for back pain on multiple occasions, with multiple associated profiles (light duty). His separation examination report, dated in July 1993, showed that his spine was clinically evaluated as normal. The post-service medical treatment reports included a 1994 VA examination report which noted that X-rays of the thoracic and lumbar spine did not reveal any abnormalities. The diagnosis was chronic upper and lower back pain with no demonstrable radiologic, orthopedic, or neurologic abnormalities. A 1995 VA examination report noted that an X-ray of the lumbar spine was normal, and contained a diagnosis of chronic thoracolumbar back pain. A 1997 VA examination report noted that an X-ray of the lumbar spine was normal, and contained a diagnosis of chronic lumbar strain with a history of sciatica. A March 1999 VA report noted that an X-ray of the lumbar spine was normal, that a physical examination was "almost normal," and that an EMG (electromyogram) and nerve conduction study was normal. The diagnosis was chronic lumbar spine strain. A June 2000 X-ray report for the lumbar spine noted minimal narrowing at L5-S1, with possible degenerative disc disease. A December 2002 VA X-ray for the lumbar spine contained a diagnosis of mild degenerative disease. See 38 C.F.R. § 4.1 (2013). In July 1994, service connection was for lumbosacral strain was granted, evaluated as noncompensable (0 percent disabling). The Veteran appealed the issue of entitlement to an initial compensable evaluation, and in February 1996, the RO granted the claim, to the extent that it assigned a 10 percent evaluation. In May 2000, the Board denied a rating in excess of 10 percent. There was no appeal, and the Board's decision became final. See 38 U.S.C.A. § 7105(b) (West 2002). In September 2000, the RO denied a rating in excess of 10 percent for the Veteran's lumbosacral strain. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7104(c) (West 2002). In February 2003, the Veteran filed a claim for an increased rating. In May 2003, the RO granted the claim, to the extent it assigned a 20 percent rating, with an effective date of December 5, 2002. The Veteran has appealed the issue of entitlement to a rating in excess of 20 percent. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In February 2003, the Veteran filed his claim. During the course of this appeal, the rating criteria for spine disorders were changed effective September 26, 2003. See 38 C.F.R. § 4.71a (Diagnostic Codes 5285, 5286, 5287, 5288, 5289, 5290, 5291, 5292, 5293, 5294, 5295) (2002); 68 Fed. Reg. 51454 -58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a (Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243)). The new criteria are only applicable to the period of time since their effective date while the old criteria may be applied forward if in effect during the appeal period; the criteria most favorable to the claimant shall be applied. VAOPGCPREC 3-2000, 65 Fed. Reg. 33,421 (2000). See also VAOPGCPREC 7-2003, 69 Fed. Reg. 25179 (2004). Under 38 C.F.R. § 4.71a, DC 5292 (as in effect prior to September 26, 2003), a 40 percent rating is warranted where the limitation of motion in the lumbar spine is severe. Under 38 C.F.R. § 4.71a, DC 5295 (as in effect prior to September 26, 2003), a 40 percent rating is warranted when there is severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Under the General Rating Formula for Diseases and Injuries of the Spine, which became effective September 26, 2003, an evaluation may be assigned with or without symptoms such as pain (regardless of whether it radiates), stiffness, or aching in the affected spinal area. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees (the maximum combined range of motion being 240 degrees), or if there is either (1) muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes", whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent rating is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See also 38 C.F.R. § 4.71a, DC 5293 (as in effect prior to September 26, 2003). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, 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. The Board finds that a rating in excess of 20 percent under DC 5292 is not warranted. A VA examination report, dated in May 2003, shows that the Veteran's lumbar spine had flexion to 60 degrees, extension to 20 degrees, bending to 20 degrees, bilaterally, and rotation to 20 degrees, bilaterally. A VA examination report, dated in July 2005, shows that the Veteran's lumbar spine had flexion to 50 degrees, extension to 30 degrees, lateral flexion to 20 degrees, bilaterally, and left lateral rotation to 40 degrees (right lateral rotation was not provided). A VA examination report, dated in December 2008, shows that the Veteran's lumbar spine had flexion to 70 degrees, extension to 30 degrees, lateral flexion to 30 degrees, bilaterally, and rotation to 30 degrees, bilaterally. A VA examination report, dated in January 2012, shows that the Veteran's lumbar spine had flexion to more than 90 degrees (with pain at 50 degrees), extension to 15 degrees (with pain at 15 degrees), lateral flexion to 20 degrees, bilaterally (with pain at 15 degrees, bilaterally), right lateral rotation to more than 30 degrees (with pain at more than 30 degrees), and left lateral rotation to 25 degrees (with pain at 30 degrees). A VA disability benefits questionnaire, dated in November 2013, shows that the Veteran's lumbar spine had flexion to 50 degrees (with pain at 50 degrees), extension to 5 degrees (with pain at 5 degrees), right lateral flexion to 15 degrees (with pain at 10 degrees), left lateral flexion to 5 degrees (with pain at 5 degrees), and lateral rotation to 20 degrees (bilaterally, with no response when questioned about pain). In summary, the demonstrated ranges of motion are not, in the Board's judgment, representative of a "severe" limitation of motion. While the Veteran does have some significant limitation of motion, most maneuvers performed were at least 50 percent of normal (normal range of motion is described, for reference, at 38 C.F.R. § 4.71a, Plate V). The only exception was in November 2013 regarding extension and lateral left lateral flexion. However, these two isolated measurements do not, in the Board's judgment, justify a rating of severe limitation of motion for the entire lumbar spine. The Board therefore finds that that the preponderance of the evidence shows that the criteria for a 40 percent rating under DC 5292 (as in effect prior to September 26, 2003) have not been met. The Board further finds that the evidence does not show that the Veteran has IDS to the required degree, and that the criteria for a rating in excess of 20 percent have not been met under DC 5293 (as in effect prior to September 26, 2003). The medical evidence shows that there are mixed findings as to whether the Veteran has had IDS during the appeal period. Compare July 2005 and November 2013 VA examination reports (noting IVDS) with December 2008 and January 2012 VA examination reports (noting that the Veteran does not have IVDS). The November 2013 VA DBQ indicates that the Veteran has IVDS, but that he did not have any incapacitating episodes in the last 12 months. In summary, despite the Veteran's complaints of daily pain, and the mixed findings as to IVDS, the evidence is insufficient to show that that he has intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Accordingly, the criteria for a rating in excess of 20 percent under DC 5293 (as in effect prior to September 26, 2003) are not shown to have been met. The criteria for a rating in excess of 20 percent have not been met under DC 5295. The demonstrated ranges of motion have previously been discussed. There are no findings of positive Goldthwait's sign, or abnormal mobility on forced motion. In this regard, the July 2005 VA examination report notes that there was slight narrowing at L4-L5, and L5-S1, but not muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. The December 2008 VA examination report notes that there was no gibbus, kyphosis, list, lumbar flattening or lordosis, scoliosis, or reverse lordosis. The January 2012 VA examination report notes that there was guarding and/or muscle spasm present, but that it did not result in abnormal gait or spinal contour. The November 2013 VA DBQ notes that there was no muscle spasm, or guarding, of the thoracolumbar spine resulting in abnormal gait or abnormal spinal countour. The Board therefore finds that the evidence is insufficient to show severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Accordingly, the criteria for a rating in excess of 20 percent under DC 5295 (as in effect prior to September 26, 2003) are not shown to have been met. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5286 and 5289 (as in effect prior to September 26, 2003) a rating in excess of 20 percent is warranted for ankylosis of the spine. However, these Diagnostic Codes are not applicable to this case. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). In this case, the Veteran is not shown to have ankylosis, see e.g., VA examination reports (noting that there was not ankylosis), and the demonstrated ranges of motion do not warrant the conclusion that his spine was shown to have been ankylosed, nor has any examiner so stated. Therefore, a rating in excess of 20 percent for the Veteran's disability is not warranted under these diagnostic codes. The Board further finds that a rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.71a, DCs 5237, 5242, or 5243 and the General Rating Formula. As previously discussed, the recorded ranges of motion for the low back do not show that the Veteran's low back has flexion to 30 degrees or less. In addition, the evidence is insufficient to show that there is ankylosis of the spine. See e.g., VA examination reports, dated in July 2005, December 2008, January 2012, and November 2013 (noting that the Veteran does not have ankylosis of the spine). With regard to DC 5243, there is no evidence of incapacitating episodes, to include within the meaning of the version of the regulation as in effect September 26, 2003 (see Diagnostic Code 5243, Note 1), and the evidence is insufficient to show that the Veteran has intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, with regard to associated neurological abnormalities, see General Rating Formula, Note 1, in February 2014, service connection was granted for radiculopathy of the right lower extremity; the evidence is insufficient to show that any other diagnosed neurological disorders exists that is associated with the service-connected lumbosacral spine disability. See e.g., January 2012 VA examination report (noting that there was no pain, or other signs and symptoms, due to radiculopathy, that radiculopathy did not affect the left side, and that there were no other neurological abnormalities related to the spine); November 2013 VA DBQ (noting that there was no numbness, or intermittent or constant pain of the bilateral lower extremities, no left radiculopathy, and no involvement of the left sciatic nerve roots). With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). The VA examination reports show inter alia that in February 2003, the Veteran complained of his back being painful and he is unable to stand or walk for too long distances or even sit for a long period of time. He stated that he was able however to drive for a short period and the back pain seems to go into his legs. On examination, there was no atrophy. The diagnosis was mild degenerative joint disease of the lumbar spine. An April 2003 statement from J.E.H., M.D., notes that he has been treating the Veteran for disorders that include sciatica and osteoarthritis. The Veteran was noted to complain of back pain and an inability to sit, stand, or walk for long distances or periods. He reportedly had diffuse tenderness with spasm, with 2+ reflexes, and no atrophy of the calf or thigh. The Veteran asserted that he could not toe or heel walk, and that he had lower leg weakness. The July 2005 VA examination report notes complaints of progressively worse back pain with moderate response to treatment, severe occasional pain with radiation to the lower extremities, and moderate weekly flare-ups usually lasting one day. On examination, there was mild fatigue and weakness, moderate spasm, and decreased motion. There were no limitations to walking. There was no pain on range of motion, and no leg or foot weakness. There were no occupational effects, and no effects on the activities of daily living. The diagnosis was DJD L4-L5, and L5-S1 with spinal stenosis. An MRI for the lumbar spine, dated in October 2007, contains an impression noting degenerative L4-L5 and L5-S1 bulges with minor facet arthropathy changes at those levels, and no significant central canal stenosis. An MRI for the lumbar spine, dated in November 2007, contains an impression noting mild disc degenerative changes L4-5 and L5-51 with mild annular bulging at each of these levels at L5-51, question of small posterior protrusion of the disc is raised although does not contact the exiting nerve roots or thecal sac T10-11 mild disc bulging. The December 2008 VA examination report notes complaints of moderate pain about three times a month lasting hours, with radiation to the hands and left foot. The Veteran stated that he could walk one to three miles. On examination, there was no guarding, weakness, pain with motion, spasm, or atrophy. Strength was 5/5 in the lower extremities. Sensory and reflex exams were normal. There were no additional limitations after repetitive motion. There were significant occupational effects, i.e., "assigned to different duties." Effects on daily activities were "none" (recreation, traveling, feeding, bathing, dressing, toileting, grooming), "moderate" (chores, shopping, and exercise), and "prevents" (sports). The examiner stated that sciatica and radiculopathy were not present, and that any degenerative disc disease, or degenerative joint disease, was not likely due to the Veteran's lumbosacral strain, explaining that the X-rays and MRIs dated in 1997 showed diffuse, gradual changes (DDD throughout) due to age rather than the localized, relatively quick-in-onset changes seen when due to trauma. The examiner further explained that a notation of sciatica "by history" in 1997 was unaccompanied by findings sufficient to show sciatica, and that a 1998 EMG and recent MRI did not contain findings sufficient to show sciatica. The January 2012 VA examination report shows that the Veteran complained of bi-weekly flare-ups. The diagnosis was DJD of the lumbar spine. After repetitive-use testing, flexion was to 80 degrees, extension was to 15 degrees, lateral flexion was to 20 degrees (bilaterally), and rotation was to more than 30 degrees (bilaterally). There was additional limitation of motion, and functional loss, after repetitive use, specifically, there was less movement than normal, as well as weakened movement, and pain on motion. Strength was 5/5 in the lower extremities, with normal reflexes and sensation. No assistive devices were required. There was no vertebral fracture. His work was impacted, specifically, sometimes he was unable to do certain tasks, and other employees helped him. The November 2013 VA DBQ shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran complained of sharp back pain that radiated to his legs, with no specific aggravating factors. He also reported weekly flare-ups manifested by sharp pain. The diagnoses were chronic right L5/S1 radiculopathy, and lumbar DDD. After repetitive-use testing, flexion was to 50 degrees, extension was to 5 degrees, lateral flexion was to 15 degrees (right side) and 5 degrees (left side), and rotation was to 20 degrees (bilaterally). There was no additional limitation of motion after repetitive testing. There was additional functional loss after repetitive use, specifically, there was pain on motion. Strength in the lower extremities was 5/5, except for the right great toe, which was 4/5. Examinations of the lower extremity reflexes, and sensation, were normal. The Veteran occasionally used a cane due to back pain. The Veteran's ability to work was impacted, specifically, at times he has to ask other employees to do certain physical tasks for him due to back complaints. The examiner also stated that during weekly flare-ups, the Veteran experiences increased back pain with no additional limitation of motion during his flare-ups, just pain. The Veteran was noted to still be able to work, with no increased absenteeism, and to engage in the activities of daily living. He reported asking other employees to help out with certain physical tasks during his flare-ups. Although he had right great toe weakness from radiculopathy, this does not limit his functional ability at work or at home. Overall, the VA progress notes show multiple treatments for complaints of back pain. An April 2003 report shows that the Veteran indicated that he worked in a claims office, and a January 2004 report shows that he reported he was an unemployment claims adjudicator. An October 2012 report notes normal strength, and a probable acute disc rupture. In November 2012, the Veteran was briefly hospitalized after he took too much pain medication. With regard to his mobility, he was noted to move independently, without assistance. In summary, the Board notes the lack of such findings as neurological impairment, incoordination, and/or muscle atrophy. When the findings are considered together with the evidence showing functional loss, to include the findings pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 20 percent. 38 C.F.R. § 4.71a; DeLuca. The Board acknowledges that the Veteran is competent to report symptoms of his lumbar spine and lower extremities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service- connected lumbar spine disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the rating currently assigned more than reasonably describes the Veteran's disability level and symptomatology. The Veteran is shown to have back pain, with some limitation of motion. The rating schedule contemplates this. 38 C.F.R. § 4.71a. The schedular criteria considered contemplate a variety of manifestations of impairment. Given the ways in which the rating schedule contemplates impairment for the Veteran's disability, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is primarily manifested by back pain and a limitation of motion. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, despite assertions made by the Veteran, the evidence of record does not show that his disability has caused him to miss work, nor does it show that it has resulted in any surgery or hospitalizations. The evidence indicates that the Veteran works full-time as a claim adjudicator, and that at times he requests the assistance of other employees for certain tasks. The Board finds, therefore, that the Veteran's service-connected disability in issue does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He reports full-time employment as a claims adjudicator. The November 2013 VA DBQ shows that the Veteran was noted to still be able to work, with no increased absenteeism, and to engage in the activities of daily living. He reported asking other employees to help out with certain physical tasks during his flare-ups. Although he had right great toe weakness from radiculopathy, this does not limit his functional ability at work or at home. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in February 2003, May 2008, July 2009, and February 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded several VA examinations. In October 2013, the Board remanded the claim for additional development. The Board noted that an April 2013 Joint Motion showed that it was agreed that the Veteran's most recent VA examination, the report of which was dated in January 2012, was inadequate. It was agreed that the report did "not deliver the level of detail required" because the only reference to any flare-ups in Appellant's lumbosacral spine by the VA examiner is a notation that Appellant experienced bi-weekly flare-ups without further information. Citing Mitchellv. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). It was further agreed that this examination report failed to comply with the Board's September 2011 remand instructions (presumably as to required findings pertaining to functional loss). The Board therefore directed that the Veteran should be scheduled for a comprehensive VA examination to determine the current nature and severity of his low back disability. In November 2013, this was done. The November 2013 VA DBQ shows that the report was based upon a physical examination, to include recording of the Veteran's subjective complaints, and that his claims file was reviewed in association with the examination. The report contains findings as to the range of motion in the lumbar spine, as well as findings in such areas as sensation, strength, reflexes, atrophy, and the presence of IVDS and whether or not it is productive of incapacitating episodes. The examiner specifically concluded that there was no additional limitation of motion after repetitive testing. The effect on his employment was noted, as were the symptoms of his disability during flare-ups, and the effects of his disability on his activities of daily living. Under the circumstances, the Board further finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). In January 2008, the Veteran was provided an opportunity to set forth his contentions during the hearing before a Veterans Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the January 2008 hearing, the VLJ identified the issue on appeal. Also, information was solicited regarding the current severity of his lumbosacral strain. The testimony did not indicate that there are any outstanding medical records available that would support his claim, and since that time, VA treatment reports dated through 2013 have been obtained. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER A rating in excess of 20 percent for service-connected lumbosacral strain is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs