Citation Nr: 1641313	
Decision Date: 10/21/16    Archive Date: 11/08/16

DOCKET NO.  13-02 909	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for lumbar spine disc disease prior to June 15, 2015, and a rating higher than 20 percent thereafter. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel






INTRODUCTION

The Veteran served on active duty from September 1987 to April 2009.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2010 and June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The March 2010 rating decision granted service connection for right knee DJD and assigned a noncompensable evaluation effective May 1, 2009.   The June 2010 rating decision granted service connection for lumbar disc disease and assigned a 10 percent evaluation effective May 1, 2009.  The Veteran appealed for higher initial evaluations.  The Veteran limited his appeal to those issues although other issues were addressed in the November 2012 Statement of the Case.

In an April 2015 decision, the Board assigned a 10 percent rating, but not higher for the Veteran's right knee DJD, throughout the entire appeal period.  The Board remanded the issue of entitlement to an initial rating in excess of 10 percent for lumbar disc disease for further development.

In a June 2015 rating decision, the Appeals Management Center (AMC) increased the rating of lumbar spine disc disease from 10 to 20 percent, effective June 15, 2015.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in claims for higher ratings when the issue of unemployability either is expressly raised by the claimant or otherwise by the record.  However, in this case, the most recent evidence demonstrates that the Veteran is employed full-time as an air traffic controller.  See February 2010 VA examination report; February 2015 VA Manatee Physician Progress notes; April 2016 VA Bradenton Primary Care Addendum.  Moreover, although he asserts that his lumbar spine ability impacts his work in that heavy lifting and bending is limited, this is taken into account in his rating, which takes into account industrial impairment.  

The Board also observes that the Veteran filed a notice of disagreement (NOD) as to a July 2014 rating decision which, as relevant, denied service connection for gout.  In April 2016, the RO issued a SOC.  However, the evidence does not show that he filed a substantive appeal and therefore gout issue is not in appellate status.  (An appeal consists of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105 (a) (West 2014); 38 C.F.R. § 20.200 (2015)).

Lastly, to the extent that the Veteran wishes to file a service connection claim for depression, secondary to his service-connected lumbar spine disability, such issue is REFERRED to the RO for the appropriate action.  See January 2013 substantive appeal in which Veteran states that his spine disability hampers his ability to exercise on a continuous basis which can be depressing at times and asserts that the back rating does not contemplate "suffering"). 


FINDING OF FACT

During the entire appeal period the Veteran's service-connected lumbar spine disability has been productive of forward flexion to 60 degrees at worst with pain on motion and functional loss, and localized tenderness to palpation of the paraspinalis muscles, but not by favorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of disc disease; or separately ratable neurologic impairment.


CONCLUSION OF LAW

During the entire appeal period, the criteria for a disability rating 20 percent, but no higher, for lumbar spine disc disease are met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104 (d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.
 
II.  VA's Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

The appeal in this case arises from the Veteran's disagreement with the initial rating following the RO's grant of service connection for his lumbar spine disability.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA also met its duty to assist the Veteran in the development of the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record includes his STRs and post-service treatment records and examination report, as well as the Veteran's contentions in support of the claim. VA afforded the Veteran spine examinations in February 2010 and June 2015, and these examinations are adequate for rating purposes.  The VA examiners reviewed the Veteran's medical history and complaints and made clinical observations and findings regarding the severity of the disability both prior to, and subsequent to June 15, 2015.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall v. West, 11 Vet. App. 268 (1998).  

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.  He has received all essential notice and has had a meaningful opportunity to participate effectively in the development of this claim.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  VA's duties to notify and assist him with this appeal have been satisfied.


III.  Pertinent Laws and Regulations Governing Increased Rating Claims

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 . 

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155 (West 2014).  Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability.  38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3. 

If there is a question as to which rating to apply to the Veteran's disability, 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 (2015). 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27   (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example.  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. §§ 4.45  and 4.59 contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations.  The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  The Court has held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance."  Id., quoting 38 C.F.R. § 4.40.

The United States Court of Appeals for Veterans Claims (Court) noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). 

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2015).

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran.  Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


IV.  Analysis - Lumbar Spine Claim

The RO rated the Veteran's service-connected lumbar spine disability pursuant to DC 5242 (degenerative arthritis) and DC 5243 (Intervertebral Disc Syndrome or IVDS) of the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a (2015). 

Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for 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; 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.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  Id. 

Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code.  Id. Note (1).

Alternatively, IVDS can be rated under the IVDS Formula. Under this formula, incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. For incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5243. 

An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, DC 5243 (2015).

As discussed in detail below, for the entire appeal period, the Board finds that the criteria for a disability rating in excess of 20 percent, but no higher, for the lumbar spine disability has been met or more nearly approximated.  

Turning now to the relevant evidence, x-rays of the Veteran's lumbar spine taken in January 2010 show evidence of a mild loss of the lordotic curve, mild localized DDD at L5-S1, and DJD.

In February 2010, the Veteran was provided a VA general medical examination.  He reported severe low back pain and flare-ups 4-5 times per year.  He stated that he was able to walk 1-3 miles and used no assistive devices to aid in locomotion.  

On examination, inspection of the spine was normal in terms of posture, head position and symmetry.  His gait was normal.  Kyphosis, lumbar lordosis, and scoliosis were not present.  Forward flexion of the thoracolumbar spine was to 70 degrees; extension was to 25 degrees; bilateral lateral flexion was to 25 degrees; right lateral rotation was to 25 degrees; and left lateral rotation was to 20 degrees.  There was no objective evidence of muscle spasms, atrophy, guarding, pain with motion, tenderness, or weakness in the thoracic spinalis.  Motor, reflex, and sensory testing of the lower extremities was normal.  Muscle tone was normal.  Muscle atrophy in the lower extremities was not present.  X-rays showed evidence of narrowing at L5-S1.  Diagnosis was lumbar disc disease.  There were no incapacitating episodes of disc disease. He works as an air traffic controller and his spine disability does not have significant effects on his work.

In his September 2010 notice of disagreement, he stated that he continued to have flare-ups with his back 3-4 times a year.  He asked for re-evaluation of the assigned 10 percent rating.

On his January 2013 substantive appeal, the Veteran stated that he has daily low back pain which hampers his ability to exercise on a continuous basis; he also indicated suffering from intermittent muscle spasms.  

VA treatment notes dated in January 2013 indicate that the Veteran fell on his back while roller-skating.  Bruising and edema was noted on the lower back.  X-rays of the lumbar spine taken at the time showed evidence of degenerative arthritis and scoliosis, but no fracture.

The Veteran most recently underwent a VA compensation of the spine in June 2015.  He indicated that his back hurts every day and increased physical activity worsened the pain.  He reported functional loss in terms of pain and limited motion.  Forward flexion of the thoracolumbar spine was to 60 degrees; extension was to 20 degrees; right lateral flexion was to 25 degrees; left lateral flexion was to 20 degrees; lateral rotation was to 25 degrees, bilaterally.  The range of motion did not itself contribute to functional loss.  Pain was exhibited on flexion, extension, and bilateral lateral flexion.  There was objective evidence of tenderness to palpation of the left paraspinal muscles.  The Veteran was able to perform repetitive-use testing and there was no additional functional loss after that testing.  A flare-up was not demonstrated on examination.  The examiner indicated that the examination is neither medically consistent nor inconsistent with the Veteran's report of functional loss with repetitive-use over time or during a flare-up.  The examiner was unable to state without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability during repeated use over time or during a flare-up, reasoning that there is no conceptual or empirical basis for making such a determination without directly observing function under those conditions.  The localized tenderness that was present did not result in abnormal gait or abnormal spinal contour.  Muscle spasms and guarding were not present.  Muscle strength and sensory testing in the lower extremities was normal (5/5).  Muscle atrophy in the lower extremities was not present.  Knee and ankle reflexes were hypoactive.  Straight leg raising was negative, bilaterally.  The Veteran did not have any radicular signs or symptoms of radiculopathy.  Radiculopathy was not diagnosed.  Ankylosis of the spine was not present.  IVDS did not result in incapacitating episodes within the past year.  The Veteran's lumbar spine disability impacts his ability to work in that heavy lifting and bending is limited.  Diagnoses of arthritis and IVDS of the lumbar spine were continued.  

After a review of all the evidence, both lay and medical, the Board finds that the criteria for a disability rating of 20 percent, but no higher, for the lumbar spine disability have been met or more nearly approximated for the entire appeal period.  3 8 C.F.R. §§ 4.3, 4.7, 4.71a. 

Forward flexion of the lumbar spine during the February 2010 VA examination was to 70 degrees, and muscle spasms and guarding were not demonstrated.  No other medical evidence during the applicable time period provides range-of-motion findings or demonstrates any muscle spasms or guarding of the low back.  It is also noted that while 2013 x-rays show evidence of scoliosis in the lumbar spine, such finding was not shown to be due to any muscle spasms or guarding.  

However, there is a basis for the assignment of a higher rating based on consideration of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204 -07.  Pain on motion was not objectively demonstrated during the February 2010 VA examination.  Nonetheless, the Board recognizes that the Veteran is competent to report experiencing painful motion in his lumbar spine.  However, while pain may cause a functional loss, it does not itself constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, in order to constitute functional loss.  See also 38 C.F.R. § 4.40.  The February 2010 VA examiner did not address whether any additional functional loss was demonstrated after repetitive-use or during a flare-up.  The Veteran however reported having had 4-5 flare-ups of severe back pain in the prior year.  In addition, he noted the muscle spasms that he suffered in his substantive appeal.  Thus, considering his reports of flare-ups, there is evidence of additional functional loss.  However, the Board concludes that any functional loss present in the lumbar spine after repetitive-use of the joint or during a flare-up is adequately accounted for in the 20 percent rating now assigned.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207.

Moreover, the weight of the lay and medical evidence is against finding that the service-connected lumbar spine disability was manifested by incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks prior to June 15, 2015.  In fact, the February 2010 VA examination report indicates that the Veteran had had no incapacitating episodes of lumbar disease.  In addition, the Veteran did not provide any statements to suggest a history of incapacitating episodes of back disease and his VA treatment records do not reflect any physician-prescribed bed rest for incapacitating episodes due to the lumbar spine disability.  

The next-higher rating of 40 percent under the General Rating Formula requires forward flexion of the thoracolumbar spine at 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, DC 5242 (2015).
Forward flexion of the Veteran's thoracolumbar spine during the June 2015 VA examination was to 60 degrees, and ankylosis of the thoracolumbar spine was not shown.  The remaining evidence dated during the applicable time period is negative for any range-of-lumbar spine motion findings or impressions of ankylosis.  Therefore, a disability rating in excess of 20 percent is not warranted under the General Rating Formula for any time during the period on appeal.  38 C.F.R. § 4.71a, DC 5242 (2015).

There is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204 -07.  There is current objective evidence of pain on motion and localized tenderness to palpation of the left paraspinal muscles, and the Veteran reports flare-ups of pain with increased physical activity.  However, as noted above, pain itself does not represent functional loss sand flare-ups do not by themselves warrant a higher rating.  Significantly, the Board finds no evidence of any additional functional loss, let alone a loss of 30 degrees, in the lumbar spine after repetitive motion or during a flare-up to warrant a higher rating beyond the now assigned 20 percent rating for the entire appeal period.  Overall, any functional loss present in the spine is adequately accounted for in the 20 percent rating currently assigned.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207.

The Board further finds that a higher (40 percent) disability rating is not warranted under the IVDS Formula.  38 C.F.R. § 4.71a, DC 5243.  The June 2015 VA examination report indicates that the Veteran had had no incapacitating episodes of lumbar disease in the prior year.  The Veteran himself has not provided any statements to suggest a history of incapacitating episodes and his VA treatment records dated from June 2015 do not reflect any physician-prescribed bed rest for incapacitating episodes due to the lumbar spine disability.  For these reasons, the Board finds that a rating in excess of 20 percent based on incapacitating episodes is not warranted for the appeal period since June 15, 2015.  38 C.F.R. §§ 4.3, 4.7.

In addition, a separate rating for neurological impairment associated with the lumbar spine disability is not warranted during the entire appeal period.  The February 2010 VA examination report indicates that the Veteran denied any radicular pain and no neurologic impairment due to the back disability was diagnosed.  In addition, the Veteran's treatment records dated do not diagnose radiculopathy or suggest any radicular symptoms in the lower extremities.  Moreover, neurologic impairment in the bowel or bladder has not been demonstrated in any treatment records or examination reports during the applicable period.  

The June 2015 examiner checked the box affirmatively indicating that the Veteran does not have diagnosed radiculopathy in the lower extremities or any signs or symptoms suggestive of radiculopathy.  No neurologic impairment in the bowel or bladder has been demonstrated in the examination report or treatment records.  Therefore, the Board finds that a separate rating for neurological impairment is not warranted from June 15, 2015.

In summary, there is a basis to support an initial disability rating of 20 percent, but no higher, for the Veteran's service-connected lumbar spine disability at any time during the pendency of this claim.  Additional staged ratings are not warranted. 

In deciding this claim, the Board considered the Veteran's competent reports of observable back symptoms, such as pain and stiffness.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the nature and severity of his spine disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Thus, although the Veteran's reports of symptoms have been considered, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). 

The Board considered all potentially applicable provisions of 38 C.F.R. Parts 3  and 4, irrespective of whether they have been raised by him, his representative, or otherwise by the record, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

As a preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

V.  Extraschedular Referral Consideration 

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321. 

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

The evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the service-connected lumbar spine disability are inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's disability, with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The Veteran's signs and symptoms and their resulting impairment, are contemplated by the rating schedule. 

As shown above, the Veteran's lumbar spine disability is primarily productive of IVDS, arthritis, and forward flexion to no worse than 60 degrees with pain. Notably, these signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5243, DeLuca, Mitchell, supra.  Accordingly, the rating criteria contemplate the Veteran's service-connected connected lumbar spine disability.  There is no evidence in the record or allegation of symptoms of and/or impairment due to this disability not encompassed by the criteria for the schedular ratings already assigned.  Referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is therefore not warranted.

The Board reiterates that the criteria practicably represent the average impairment in earning capacity resulting from the Veteran's back disability.  See 38 C.F.R. § 4.1 (2015).  To the extent that the Veteran seeks service connection for depression (see January 2013 substantive appeal), such was referred to the RO for consideration as a secondary service connection claim.

According to Johnson v. McDonald, 762 F.3d 1362   (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321 (b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations" Referral for an extraschedular rating under 38 C.F.R. § 3.321 (b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. 


ORDER

An initial rating of 20 percent, but no higher, is granted for for lumbar spine disc disease for the entire appeal period.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs