Citation Nr: 1420005 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 09-04 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and G.G. ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2000 to December 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2011, the Board remanded the Veteran's claim for further development, to include obtaining VA medical records, scheduling a VA spine examination, and subsequently readjudicating the claim. A review of the record shows that VA treatment records have been associated with the claims file, an examination was conducted in October 2011, and the claim was readujudicated in a March 2012 Supplemental Statement of the Case. As a result, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's service-connected lumbar spine disability has been manifested by pain, forward flexion of the thoracolumbar spine to greater than 60 degrees, and a combined range of motion of the thoracolumbar spine of greater than 120 degrees, without muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour, incapacitating episodes due to the disc disease, or ankylosis. 2. For the entire appeal period, there is no objective evidence of a separate and distinct neurological disability due to the thoracolumbar spine disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by an April 2008 letter to the Veteran. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes the Veteran's service treatment records, private treatment records, VA treatment records, statements in support of the claim by the Veteran and her representative, other lay statements, and VA examinations. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate for rating purposes. The examinations were performed by medical professionals based on a review of claims file and/or a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examination reports are accurate and fully descriptive and include an assessment as to whether the lumbar spine disability caused impairment in the Veteran's ordinary and occupational activity. The Board finds that for these reasons, the Veteran has been afforded adequate examinations and the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295(2008). Additionally, the Veteran testified at a hearing before the Board in July 2010. In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the July 2010 Travel Board hearing, the Veteran was assisted by an accredited representative. The undersigned Acting Veterans Law Judge fully explained the issue and suggested the submission of evidence that may substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the Acting Veterans Law Judge who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Scheduler ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes found at 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of the injury or disease. 38 C.F.R. § 4.71a. The General Formula provides that an evaluation of 10 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, ankylosis is defined as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a at Note (5). Moreover, 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 for the thoracolumbar spine is 240 degrees. Id. at Note (2). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total of at least one week but less than two weeks during the past twelve months. Id. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. Id. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. Id. A 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past twelve months. Id. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. at Note (1). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The factors involved in evaluating and rating disabilities of the joints include increased or limited motion, weakness, fatigability, incoordination, painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.45. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. Deluca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); VAOPGCPREC 9-98. 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 v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). 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). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that she is entitled to a disability rating in excess of 10 percent for her lumbar spine disability. The Veteran states that she had constant, daily back pain and physical activity exacerbated the back pain. See the Veteran's testimony at the hearing before the Board in July 2010. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for the service-connected thoracolumbar spine disability for the entire appeal period. First, the Board finds that there is no basis for a higher rating based on forward flexion or the combined range of motion of the thoracolumbar spine. As reflected in VA examinations from April 2008 and October 2011, the range of motion of the thoracolumbar spine has been recorded as follows: forward flexion ranging from 70 to 90 degrees; extension ranging from 25 to 30 degrees; right lateral flexion ranging from 20 to 30 degrees; left lateral flexion ranging from 20 to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The combined ranges of motion were 240 degrees and 195 degrees at the April 2008 and October 2011 examinations, respectively. VA treatment records from April 2009 contained in the "Virtual VA" system also note the Veteran exhibited lumbar flexion, extension, and lateral bending without restrictions; a February 2012 EMG consult report also noted the Veteran's active range of motion for the lumbar spine was within normal limits. Furthermore, records from Care Chiropractic from July 2007 to November 2007 reflect the Veteran's report of constant low back pain, but her range of motion of the thoracolumbar spine was described as within normal limits. A March 2011 VA physical medicine and rehabilitation consultation record indicates that on examination, lumbar range of motion was moderately restricted in all planes due to pain with extension most painful. There was tenderness to the spinous process and there was mild diffuse myofascial tenderness to palpation of the left lower lumbar paravertebral muscles. Muscle conditioning was poor in lumbar paraspinals. The impression was chronic low back pain of unclear etiology and mild L4-L5 facet hypertrophy (per MRI) with lumbar deconditioning and resulting pain and dysfunction. The VA physician noted that the Veteran's current status difficult to fully explain at this time. The VA physician indicated that the Veteran had chronic low back pain since she was 20 years of age without trauma preceding, no significant abnormality on imaging, and with no identifiable pain relieving measure determined as yet. She has reportedly not been helped with physical therapy, chiropractic, medications, or lumbar steroid injection. It was noted that the Veteran had pain and tenderness with positions and movements not expected to cause such acute low back pain. Limited treatment options were discussed and offered. As noted, the Veteran reported having pain with motion and increased pain with physical activity; however, the VA examination reports indicate that there was no evidence of additional limitation of motion with repetition and there is no evidence of any additional limitation of motion due to pain, weakness, lack of endurance, or incoordination. The April 2008 VA examination report indicates that on range of motion testing, the Veteran experienced pain on forward flexion at 60 degrees and she experienced pain at 30 degrees on extension and on left and right rotation. The October 2011 VA examination report indicates that on range of motion testing, the Veteran experienced had forward flexion to 70 degree with pain beginning at 40 degrees, extension to 25 degrees with pain at that point, right and left lateral flexion to 25 degrees with pain beginning at 10 degrees, and right and left rotation to 30 degrees or greater with pain beginning at 30 degrees. The report indicates that the Veteran did not have any additional limitation of motion after repetition. The examiner described the Veteran's functional impairment as less movement than normal and pain on movement. There is no evidence that the back pain caused additional limitation of motion of the thoracolumbar pain and the Veteran had forward flexion of the thoracolumbar spine beyond 60 degrees. The Board has fully considered and weighed the Veteran's reports of back pain with prolonged motion or activity, and applied the rating principles at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, but finds that, even fully considering such factors, the pain does not limit motion to such extent to warrant a higher rating under Diagnostic Code 5260 or 5261. The weight of the competent and credible evidence establishes that the back pain did not cause any additional limitation of motion of the thoracolumbar spine. The current limitation of motion, pain, and other limiting factors are contemplated by and provide the basis for the 10 percent rating currently assigned. The April 2008 VA examination notes that the Veteran reported having fatigue, stiffness, and weakness of the thoracolumbar spine. The VA examination reports indicate that muscle strength testing was normal and there was no muscle atrophy. The October 2011 VA examination report did not indicate that fatigue, weakness, or stiffness caused functional impairment. The Board finds that there is no basis for the assignment of higher rating than 10 percent on the basis of additional disability due to weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca at 206-07. Next, the evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal contour. The April 2008 VA examination indicates that spasm was detected on examination. However, guarding was not found in the April 2008 and October 2011 examinations. The Veteran's gait has been consistently described as normal, both during the aforementioned examinations and throughout VA treatment records during the course of the appeal. For instance, the May 2009 VA chiropractor consultation noted the Veteran's gait and spinal contour were normal. There is no evidence of abnormal spine contour. In May 2007, an MRI of the lumbar spine indicated "no significant osseous abnormality." Similarly, a June 2006 MRI was unremarkable for any spinal abnormalities. The December 2010 indicates that the lumbar spine had normal lordosis. The April 2008 VA examination report indicates that there was no evidence of abnormal spinal curvatures. The evidence does not show that any of the 20 percent rating criteria are met or more nearly approximated, namely, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes. There is no evidence of ankylosis. As such, the criteria for the assignment of a 20 percent disability rating or higher have not been met or more nearly approximated for the service-connected thoracolumbar spine for the period of the appeal. 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 10 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243. The preponderance of the evidence establishes that the service-connected lumbar spine disability is not manifested by intervertebral disc syndrome productive of incapacitating episodes having a total duration of at least two weeks during the past 12 months. The evidence does not show that the Veteran has ever required bed rest, as prescribed by a physician. Physician-prescribed bed rest is the requirement for an incapacitating episode. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The evidence does not demonstrate totally incapacitating days. The October 2011 examination specifically indicated the Veteran did not have Intervertebral Disc Syndrome. For these reasons, the Board finds that a disability evaluation in excess of 10 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a. In making the above determinations, the Board has considered the Veteran's complaints of functional loss due to pain. Although the April 2008 examination noted a history of fatigue, stiffness, and weakness, there was no additional limitation in range of motion noted upon repetitive-use testing. Similarly, the October 2011 examination report did not reflect additional loss of motion, nor did it find any incoordination, excess fatigability, or weakened movement. Moreover, both examinations did not reflect muscle atrophy or ankylosis of the thoracolumbar spine. The Board acknowledges the Veteran's statements that she experiences pain in her low back. She has submitted statements in this regard, and she has consistently reported pain during VA and private medical treatment. Her treatment records reflect use of a TENS unit. The Veteran also submitted several lay statements from friends, her parents, and an employer that describe her back symptoms, to include pain, difficulty walking, and difficulty rising from a seated position on the floor. Despite these symptoms, as described, there has been no additional loss of motion demonstrated upon repetitive-use testing. Moreover, in a February 2012 EMG Consultation, the Veteran also denied needing assistance with activities of daily living. For the entire appeal period, even with considerations of additional limitations due to pain and orthopedic factors, the Veteran did not experience limitation of forward flexion of the thoracolumbar spine to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour, or incapacitating episodes due to the disc disease. 38 C.F.R. §§ 4.3, 4.7. As a result, a rating in excess of 10 percent for functional loss is not warranted in this case. See 38 C.F.R. §§ 4.40 and 4.45, Deluca, 8 Vet. App. at 202. The Rating Schedule provides that any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. The evidence of record shows that the Veteran reported having symptoms of numbness in the knees and radiating pain to the legs at times. However, a separate neurological disability has not been diagnosed. VA neurological examination in October 2011 revealed normal muscle strength testing, reflexes, and sensory examination. Straight leg raising test was negative. The examiner stated that there were no signs or symptoms of radiculopathy and no other neurologic abnormalities or findings related to the thoracolumbar spine. There are no objective findings of bowel or bladder impairment noted in the examination reports, and VA treatment records also suggest the Veteran has not experienced bladder incontinence. See the May 2009 VA chiropractor consultation. A sensory examination was also normal at that time. The Board notes, however, that the Veteran has described numbness in her knees. A review of the examination results show that detailed motor, sensory, and reflex examinations all yielded normal results. The Veteran's muscle tone was also normal. Similarly, as noted, motor, sensory, and reflex examinations yielded normal results at the October 2011 VA examination. A straight leg test was negative, and the examiner did not find radicular pains or any other signs or symptoms due to radiculopathy. Indeed, the examiner found no other neurologic abnormalities or findings related to the thoracolumbar spine. Furthermore, the Veteran was referred for an EMG consultation in February 2012 based on her reports of leg weakness and back pain. The Veteran indicated that she could not stand for more than five minutes before her knees felt heavy and weak. However, a motor examination yielded normal results, and no atrophy was noted in either the upper or lower extremities. Reflexes were normal and sensation tests were normal in all four limbs. Moreover, the examiner indicated the nerve conduction study was normal and there was "no electrodiagnostic evidence of a peroneal, tibial, sural mononeuropathy, L4-S1 radiculopathy, lumbosacral plexopathy, myopathy, or a peripheral polyneuropathy." For these reasons, the Board finds that the evidence does not establish that the service-connected thoracolumbar spine disability is productive of a separate and distinct neurological disability, and a separate rating under the pertinent neurological rating criteria is not warranted. In summary, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected thoracolumbar spine disability for the entire appeal period, and the appeal for a rating in excess of 10 percent for the thoracolumbar spine disability must be denied. 38 C.F.R. §§ 4.3, 4.7. Additional Considerations The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the evidence of record shows the Veteran continues to be employed on a full-time basis working in a laboratory. The Veteran testified at the July 2010 Board hearing that her back symptoms sometimes made her late for work or caused her to leave early, but she "never" missed work due to her back problems. She explained that she did not remove trash and would sometimes ask for help lifting heavier items. The Veteran's employer also submitted a letter in July 2010. The employer indicated that she would not consider the Veteran for "more physically demanding" positions and that certain accommodations were made for the Veteran; she affirmed another employee handled trash disposal. However, she complemented the Veteran's work ethic and did not indicate the Veteran was unemployable. The October 2011 VA examination report indicates that the examiner opined that the Veteran would not be able to engage in manual labor such as repetitive lifting or bending but she should be able to engage in teaching. The evidence shows that the Veteran has training and work experience as a teacher. Thus, the Board finds that Rice is inapplicable in this case. Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has 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 for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected thoracolumbar spine are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe her disability level and relevant symptomatology. There has been no unusual clinical picture presented or any other factor which takes the disability outside the usual rating criteria. Specifically, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as pain and limitation of motion, are the symptoms included in the criteria found at 38 C.F.R. § 4.71a and applied with consideration of 38 C.F.R. § 4.40, § 4.45, and § 4.59. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine is denied. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs