Citation Nr: 1623877 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 10-24 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (DM), to include as associated with service-connected hypertension. 2. Entitlement to a disability rating in excess of 10 percent for a service-connected low back disability. 3. Entitlement to a compensable initial rating for erectile dysfunction. 4. Entitlement to a disability rating in excess of zero percent from June 10, 2008; in excess of 10 percent from April 4, 2012; and in excess of 20 percent from November 24, 2015, for a service-connected jaw disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to January 2000. This appeal is before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in part continued a 10 percent rating for a low back disability; continued a noncompensable rating for a jaw disability; granted service connection for erectile dysfunction associated with hypertension and assigned a noncompensable rating, effective August 14, 2008; and denied service connection for DM, secondary to service-connected hypertension. The case has since been transferred to the RO in Montgomery, Alabama. In a January 2016 rating decision, the RO granted a higher rating of 10 percent, effective April 4, 2012, and 20 percent from November 24, 2015, for a jaw disability. The issue remains in appellate status as the maximum rating has not been assigned for any period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified before the undersigned Veterans Law Judge at an April 2016 videoconference hearing, and a transcript of this hearing is of record. FINDINGS OF FACT 1. The Veteran's DM is reasonably shown to have been incurred in active duty service with continuous post-service symptomatology. 2. During the entirety of the appeal period, the Veteran's low back disability has been manifested by chronic low back pain and forward flexion ranging from 75 to 100 degrees, with combined range of motion ranging from 125 to 200 degrees. 3. The Veteran has no deformity of the penis. 4. Prior to the promulgation of a Board decision, the Veteran withdrew in writing his appeal concerning the issue of entitlement to a higher disability rating for his service-connected jaw disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for DM have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.303, 3.307(a)(3), 3.309(a) (2015). 2. During the entirety of the appeal period, the criteria for an increased rating in excess of 10 percent for a service-connected low back disability have not been met. 38 US.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2015). 3. The criteria for an initial compensable rating for service-connected erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.20, 4.31, 4.115b, Diagnostic Code 7522 (2015). 4. The criteria for withdrawal of appeal concerning the issue of entitlement to a disability rating in excess of zero percent from June 10, 2008; in excess of 10 percent from April 4, 2012; and in excess of 20 percent from November 24, 2015, for a service-connected jaw disability have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Given the favorable action taken below regarding the Veteran's service connection claim for DM, the Board will not discuss further whether those duties have been accomplished. See e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. In regards to the higher evaluation claims, VA's duty to notify was satisfied by letters on July 2008 and October 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained all service treatment records and identified and available private and VA treatment records for the Veteran. In addition, the Veteran underwent VA examinations in December 2008, April 2012, and December 2015 for his low back disability and erectile dysfunction. The Board finds that the VA examinations are adequate, because the examinations included examination of the Veteran and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. As noted above, the Veteran testified at a Board hearing in April 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2015). Here, during the hearing, the VLJ elicited testimony to support the Veteran's claims and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. 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 can adjudicate the claims based on the current record. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection - Diabetes Mellitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, where a veteran served 90 days or more of active service, and a certain chronic disease, such as DM, becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Because the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran specifically contends that his DM is secondary to his service-connected hypertension. See VBMS, 6/10/08 Statement in Support of Claim. However, at his April 2016 videoconference hearing, he admitted that his belief that hypertension can cause DM was not based on any evidence that he had; and he stated that he did not require additional time to submit such evidence. He also believes that he should be granted service connection because he had elevated levels of glucose in service. See VBMS, 3/30/09 Correspondence (NOD); 6/11/10 VA 9. Service treatment records (STRs) reflect that relevant lab work, including glucose level, was within normal limits in May 1983, July 1984, January 1986, July 1992, and October 1998. See VBMS, 6/11/10 STR, p. 1, 7, 9; 5/8/15 STR (7/7), p. 3, 12; 5/8/15 STR (3/7), p. 129; 5/8/15 STR (5/7), p. 16. A March 1993 record reflects a diagnosis of chronic, essential hypertension. See 5/8/15 STR (3/7) at 21. The Veteran had elevated glucose levels in March 1996, February 1999, April 1999, and May 1999; and there was an assessment of rule out diabetes mellitus. See 6/11/10 STR at 3. See also VBMS, 5/8/15 STR (2/7), p. 10; 3/30/09 STR, p. 6, 9; 10/6/08 STR, p. 32. However, there is no evidence, and it is not asserted, that there was an in-service confirmed diagnosis of diabetes in association with the elevated glucose levels. A November 2001 VA general medical examination report included a contemporaneous blood test result for a glucose level of 111, denoted "H" for "Abnormal high." The examination report did not reference this result nor was the Veteran diagnosed with diabetes. Private and VA treatment records from April 2003 to December 2009 reveal treatment for and diagnosis of DM that fluctuated from being well-controlled to poorly controlled. An April 2003 private treatment record reflects a diagnosis of noninsulin-dependent DM that was "out of control." See 6/10/08 Private Treatment Records (Dr. A.V.), p. 20. A June 2003 VA treatment record shows that the Veteran reported that he was diagnosed with DM eight months ago and with hypertension 20 years ago. He was assessed with poorly controlled DM and well-controlled hypertension. See VBMS, 12/10/08 VA Treatment Records, p. 1-2. A March 2010 VA examination report indicates review of the Veteran's claims file, service treatment records, and medical records; recounted the Veteran's history; and recited his complaints. The Veteran stated that he had DM during service because "the count was high" in 1999. He did not recall being treated for DM until 2002 when he was diagnosed. The VA examiner diagnosed the Veteran with DM, and opined that it was not at least as likely as not that the Veteran had an onset of DM during active duty service. She very briefly explained that, after reviewing the in-service glucose results and the times that the specimens were collected, she did not believe them to be fasting glucose results. As such, she stated that those results do not diagnose DM. She also noted that it was more likely than not that the onset of DM occurred after 2001 as the 2001 VA examinations did not note any diagnosis of DM and his glucose level was 111. The Board finds this examination to be inadequate because the examiner did not explain why she believed the in-service high glucose results to not be fasting glucose results; and did not discuss the significance of the November 2001 laboratory results reflecting an abnormally high glucose level at 111. VA treatment records from December 2010 to December 2015 merely reflect diagnoses of DM. See Virtual VA, 3/8/12 CAPRI, at 18; 1/3/16 CAPRI, p. 13. After review of all of the evidence of record, lay and medical, the Board finds that the preponderance of the evidence is at least in relative equipoise, and thus the Veteran's claim for service connection for DM should be granted. As an initial matter, the Board finds that the Veteran has a current disability as both VA and private treatment records reflect a current diagnosis of DM. See 38 C.F.R. § 3.303(a). Although DM is subject to presumptive service connection under 38 C.F.R. § 3.307(a)(3) and 3.309(a), the Veteran was not diagnosed with DM until 2002, two years after separation from active duty service. However, his service treatment records reflect that he exhibited elevated glucose levels at the end of active duty service, beginning in March 1996 and again in February, April, and May 1999, which prompted an assessment to rule out DM. It does not appear that the Veteran was diagnosed with DM before separation in January 2000. At a November 2001 VA general medical examination, the Veteran's glucose level was noted to still be abnormally high. He was then diagnosed with DM the following year in 2002. As such, the Board gives the Veteran the benefit of the doubt and finds that the evidence demonstrates continuity of symptomatology of his DM since service. Based on the evidence of record in conjunction with the applicable laws and regulations, the Board finds the evidence for and against the Veteran's service connection claim for DM to be at least in relative equipoise. The Veteran has provided evidence of a current diagnosis and symptoms of DM since service. For these reasons, the Board finds that service connection for DM is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. III. Higher Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination - assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Low Back Disability The Veteran's service-connected low back disability has been evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5235. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasms, and tenderness. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The general rating formula provides for a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available for unfavorable ankylosis of the entire spine. 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); see also Plate V. 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5). Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). A 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Veteran contends that he is entitled to a higher rating for his low back disability due to constant pain that affects his daily activities. He stated that his back pain makes it difficult for him to take a short walk around the block, generates pain down his left leg, and prevents him from getting a good night's sleep. He stated that his pain is worse on some days and prevents him from walking at times, bending, or standing for prolonged periods of time. See VBMS, 8/14/08 Statement in Support of Claim; 3/30/09 Correspondence (NOD); 6/11/10 VA 9; 4/18/16 Hearing Testimony. VA treatment records from July 2008 to October 2008 reflect complaints and diagnoses of chronic low back pain; limitation in forward flexion, extension, and lateral bending; adequate gait; the Veteran's report of occasional radiation laterally; and the Veteran's denial in October 2008 of joint pain, stiffness, trauma, fracture, and myalgia. See Virtual VA, 1/13/16 CAPRI, p. 13, 48, 64, 68, 70. A December 2008 VA examination report indicated review of the Veteran's claims file and medical records, recounted the Veteran's history, and recited his complaints. The Veteran reported a history of fatigue, stiffness, and pain in the left lumbar back, described as throbbing, severe, constant, daily, and worse with walking and standing. He denied decreased motion, weakness, spasms, flare-ups, and incapacitating episodes. He stated that he was able to walk more than one-fourth of a mile but less than one mile, and he did not use any assistive devices or aids. Upon examination, the VA examiner found that he had a normal gait; no abnormal spinal curvatures, such as lumbar lordosis, scoliosis, or reverse lordosis; no ankylosis; and no spasm, atrophy, or weakness. The VA examiner found guarding, pain with motion, and tenderness bilaterally, but stated that it was not severe enough to be responsible for an abnormal gait or spinal contour. Range of motion (ROM) testing revealed flexion of the thoracolumbar spine of 100 degrees and combined ROM of 200 degrees. An x-ray revealed that the normal lordotic curve and heights of the vertebral bodies were preserved. The Veteran was diagnosed with residuals (pain and decreased ROM), status post surgery for pars interarticularis fracture of the lumbar spine. VA treatment records from April 2009 to February 2012 reflect continued complaints of back pain and diagnoses of stable chronic low back pain. See Virtual VA, 1/13/16 CAPRI, p. 4, 13; 3/8/12 CAPRI, p. 1, 10, 16, 18, 68, 84. An April 2012 VA examination report reflects a diagnosis of lumbar spine degenerative joint disease, previously L5 fracture, status post surgery. The Veteran reported flare-ups manifested by constant pain to the lower back rated as 7 or 8 out of 10, which increased to 10 at least four times a week. ROM testing revealed flexion of the thoracolumbar spine pf 85 degrees with objective evidence of painful motion beginning at that point, and combined ROM of 160 degrees. Additionally, he found that the Veteran had localized tenderness or pain to palpation at the L1-L2 midline, no guarding or muscle spasm, no muscle atrophy, no radicular pain or signs due to radiculopathy, no IVDS, and arthritis based on imaging studies. VA treatment records from July 2014 to December 2015 reflect diagnoses of stable chronic low back pain, the use of prescribed pain medication and rest to manage the pain, and the ability to ambulate without assistance. See Virtual VA, 1/3/16 CAPRI, p. 17, 29, 34, 39, 52. A December 2015 VA examination recounted the Veteran's history and recited his complaints. The VA examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine and noted a 1982 diagnosis of residual of injuries to the spine with surgery. The Veteran reported constant low back pain with variable intensity; restricted movement of the back; and that it hurt to stand, walk, and bend back. The VA examiner stated that the Veteran referred to pain in his thighs about two to five times a month for 10 to 15 seconds, but noted that he had not been diagnosed with radiculopathy. The Veteran's ROM was abnormal with forward flexion at 85 degrees and combined ROM of 155 degrees. After repetitive-use testing, the Veteran's ROM decreased with forward flexion of 75 degrees and combined ROM of 125 degrees. The VA examiner found no guarding, muscle spasm, ankylosis, IVDS, or thoracic vertebral fracture with loss of 50 percent or more of height. The Veteran's x-rays documented arthritis. Based on a careful review of all of the evidence, both lay and medical, the Board finds that a disability rating in excess of 10 percent for the Veteran's low back disability is not warranted for any portion of the appeal period. The Veteran had forward flexion of the thoracolumbar spine ranging from 75 to 100 degrees and combined range of motion ranging from 125 to 200 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Additionally, the Veteran was found to have guarding, pain with motion, and bilateral tenderness that were not severe enough to be responsible for an abnormal gait or spinal contour, which were both normal. The Board acknowledges that the Veteran's service-connected low back disability causes pain. The presence of pain, as described by the Veteran, is certainly a component of disability; however, all compensable levels under the rating schedule for the spine are assigned "with or without symptoms such as pain." 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In this sense, the complaints of pain are encompassed by the assigned rating in this case. While the pain may cause flare-ups that may curtail the Veteran's regular functions, such instances do not equate to the next higher rating. Here, despite the presence of pain upon movement, the evidence of record demonstrates that any additional limitations in the Veteran's range of motion was considered and recorded by the April 2012 and December 2015 VA examiners. The 10 percent rating is therefore appropriate as it already encompasses the provisions of 38 C.F.R. §§ 4.40, 4.45, and the DeLuca considerations. The Board also finds that a staged rating is not appropriate. The Veteran did not exhibit any symptoms which demonstrate 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 abnormal gait or abnormal spinal contour. As such, an evaluation in excess of 10 percent is not warranted for any portion of the period on appeal. The Board has also considered whether a higher rating may be available under the Formula for Rating IVDS Based on Incapacitating Episodes. However, there is no evidence that the Veteran suffers from incapacitating episodes and the April 2012 and December 2015 VA examiners found that the Veteran did not have IVDS. The Board further finds that no separate rating is warranted for neurological disorders as all VA examiners found neurological examinations to be normal and there were no diagnoses of bowel or bladder problems or radiculopathy. As such, the Board finds that the weight of the evidence is against a rating in excess of 10 percent for a low back disability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. B. Erectile Dysfunction The Veteran appeals his noncompensable initial rating for erectile dysfunction, effective August 14, 2008. The Veteran's erectile dysfunction is rated under Diagnostic Code 7522, and is thus rated by analogy under the criteria for deformity of the penis. See 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. In every instance where the Rating Schedule does not provide a percentage evaluation for a diagnostic code, a zero percent evaluation is assigned when the requirements for a compensable rating of a diagnostic code are not shown. 38 C.F.R. § 4.31. A note to Diagnostic Code 7522 indicates that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 (2015) should be reviewed. In this regard, the Veteran has received SMC based on loss of use of a creative organ pursuant to 38 C.F.R. § 3.350(a). The Board finds that a compensable rating for the Veteran's erectile dysfunction is not warranted. While the record reflects erectile dysfunction, the evidence does not demonstrate, and the Veteran does not contend, that he has any deformity of the penis. VA treatment records from March 2008 to January 2015 reflect a diagnosis of erectile dysfunction described as stable. See Virtual VA, 1/13/16 CAPRI, p. 88; 3/8/12 CAPRI, p. 3, 19; 1/13/16 CAPRI, p. 39, 52. A December 2008 VA examination report reflects that the Veteran was found to have normal penis, testicles, prostate, and seminal vesicles upon examination. April 2012 and January 2016 VA examination reports also reflect that the Veteran had normal penis, testes, and epididymis upon examination. Thus, the objective medical evidence reflects no deformity of the penis. Additionally, the Veteran does not contend to have a penis deformity. At his April 2016 videoconference hearing, the Veteran stated that he did not have any deformity of the penis. As both the medical and lay evidence reveals that the Veteran does not have any deformity of the penis, a compensable rating under Diagnostic Code 7522 is not warranted. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's erectile dysfunction, but finds that no other diagnostic code provides a basis for a higher rating. A compensable rating is assignable for atrophy of both testes (see 38 C.F.R. § 4.115b, DC 7523 (2015)). However, the evidence does not suggest that the Veteran has any such atrophy. Accordingly, a compensable rating for erectile dysfunction is not warranted, and there is no basis for staged rating pursuant to Fenderson, 12 Veteran. App. at 126. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53-56. C. Extraschedular The Board has considered whether an extraschedular evaluation is warranted for the issues on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321(b)(1) (2015). 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 disabilities are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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 claimant'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 claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 111. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected disabilities, which are recited in detail above, are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Thus, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). V. Withdrawal - Jaw Disability Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The record reflects that the Veteran withdrew his appeal of the claim for entitlement to higher ratings for service-connected jaw disability at his April 2016 videoconference hearing. Hence, there remains no allegation of errors of fact or law for appellate consideration regarding this claim, the Board does not have jurisdiction to review it, and it is dismissed. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for DM, to include as associated with service-connected hypertension, is granted. Entitlement to a disability rating in excess of 10 percent for a service-connected low back disability is denied. Entitlement to a compensable initial rating for erectile dysfunction is denied. The appeal of the issue of entitlement to a disability rating in excess of zero percent from June 10, 2008; in excess of 10 percent from April 4, 2012; and in excess of 20 percent from November 24, 2015, for a service-connected jaw disability is dismissed. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs