Citation Nr: 21009326 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-08 684 DATE: February 22, 2021 ORDER A disability rating in excess of 10 percent prior to May 31, 2013, and 20 percent thereafter, for degenerative disc disease of the thoracolumbar spine, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to May 31, 2013, the Veteran’s service-connected degenerative disc disease of the thoracolumbar spine was manifested by flexion of 90 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees with consideration of pain, repetitive use, and flare-ups and no evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, ankylosis or physician prescribed bed rest. 2. Subsequent to May 31, 2013, the Veteran’s service-connected degenerative disc disease of the thoracolumbar spine was not manifested by forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 3. The schedular criteria are adequate to describe the severity and symptoms of the Veteran’s degenerative disc disease of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine prior to May 31, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 5237. 2. The criteria for a disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine subsequent to May 31, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 5237. 3. The criteria for a higher rating for degenerative disc disease of the thoracolumbar spine on an extraschedular basis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1997 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. It was first before the Board in August 2015, at which time it was denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2016 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran moved the Court to issue an order vacating and remanding the August 2015 decision. The Court granted the JMR in an April 2016 Order. The claim then returned to the Board in May 2016, at which time it was remanded to allow for the Director of Compensation and Pension to make a determination regarding rating the claim on an extraschedular basis. Subsequently, the claim returned to the Board in May 2017, November 2017, and October 2019 and was remanded for further development in each instance, to provide additional VA examinations and medical opinions. The Board finds that there has been substantial compliance with its previous remand instructions and the claim is ready for final adjudication. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Increased Disability Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. Although pain may cause a functional loss, “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, 44 (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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Finally, when flare-ups are an indicated part of a claimant’s service-connected disability, VA examiners are obligated to elicit information concerning the “severity, frequency, duration, or functional loss manifestations” of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran’s service-connected degenerative disc disease of the thoracolumbar spine is currently rated as 10 percent disabling, prior to May 31, 2013, and 20 percent thereafter, under Diagnostic Code 5243-5237. Under this criteria, a 10 percent rating is warranted when there is 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 an 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 when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Additionally, if there is evidence of intervertebral disc syndrome (IVDS), Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6; Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. at Note 1. Prior to May 31, 2013 The Veteran underwent a VA examination in October 2008. At that time, she reported experiencing a constant, non-radiating, burning ache over the right lower lumbar region. Flare-ups consisted of sharp pain that radiated to the legs, occurring two or three times a week. Flare-ups were triggered by exercise and walking for more than half a mile or more than an hour. She had no periods of physician prescribed bed rest or incapacitation for her back problems. Physical examination revealed that the Veteran’s lumbar spine had a normal curvature. The lumbar spine had full range of motion, but the Veteran complained of pain throughout flexion and extension motions, as well as the left lateral flexion motion. Specifically, flexion was to 90 degrees, bilateral lateral flexion was to 30 degrees and bilateral lateral rotation was to 30 degrees. There was no evidence of further limitation due to pain, weakness, stiffness, or fatigability on repetitive testing motion of the lumbar spine. VA treatment records from 2010 and 2011 show that when examined, the Veteran reported back pain which was elicited by motion; however, testing showed full range of motion. Private treatment records show the presence of a dull and constant ache in the back which was aggravated by walking. Range of motion testing in August 2011 showed forward flexion to 70 degrees. Based on the evidence of record, the Board finds that a higher rating is not warranted for this period. In order to qualify for the higher rating, the record would need to show 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 is 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. Such is not shown by the record. Rather, at its worst the flexion of the Veteran’s thoracolumbar spine was limited to 90 degrees prior to May 31, 2013. The thoracolumbar spine was not limited to 60 degrees or less and the combined range of motion of the thoracolumbar spine was greater than 120 degrees even with consideration of limitation of motion due to pain and any limitation in function after repetitive use. Furthermore, the medical evidence reveals that the Veteran’s muscle spasms did not result in abnormal gait or spinal contour. Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine prior to May 31, 2013. The Board recognizes the Veteran’s assertions that her disability warrants a higher evaluation and these endorsements have been taken into consideration. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of her disability according to the rating criteria. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of her disability has been provided by clinical records associated with the claims file and these medical findings directly address the criteria under which the disability is evaluated. The Board finds the VA examiners’ findings to be competent, objective, and probative evidence of record, and are therefore accorded greater weight than the Veteran’s subjective complaints of symptomatology for her disability. Thus, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 10 percent for the Veteran’s degenerative disc disease of the thoracolumbar spine, prior to May 31, 2013. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. Subsequent to May 31, 2013 VA and private treatment records during this period reflect complaints and treatment for low back pain. The Veteran was provided with a VA examination in May 2013. At that time, she reported constant back pain, treated with injections, steroids, pain medications, TENS unit, aquatic therapy, spinal stimulatory implant, nerve blocks, and chiropractor care. She also reported muscle spasms in the lower back. Testing showed broad-based posterior bulging discs at L3-L4 and L5-S1 and retrolisthesis at L4 and L5. The examiner determined that the current diagnosis of chronic thoracic and lumbar strain should be corrected to degenerative disc disease and retrolisthesis based on the results of the testing. The examiner also noted that flare-ups impacted spine function and were brought about by prolonged standing, sitting, driving, and ambulation. Testing showed forward flexion was to 90 degrees or greater. Objective painful motion began at 60 degrees. Extension ended at zero degrees with objective evidence of painful motion at zero degrees. Bilateral lateral flexion was to 25 degrees with objective evidence of painful motion at 15 degrees. Bilateral lateral rotation was limited to zero degrees with pain at zero. The Veteran did not have any additional limitation of range of motion of the thoracolumbar spine following repetitive testing. Functional loss and/or functional impairment of the spine was characterized by less movement than normal, pain on movement and interference with sitting, standing, and weight-bearing. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran had guarding and muscle spasm, but it did not result in abnormal gait or spinal contour. The Veteran had IVDS, but she did not have any incapacitating episodes over a 12-month period due to the condition. In June 2017, the Veteran underwent an additional VA examination. At that time, she reported chronic back pain and stiffness that occurred daily and varied from aching to sharp stabbing pain. The Veteran reported stabbing low back pain, stiffness and spasms on flare-ups. These symptoms were treated with steroid injections, trigger point injections, TENS unit, an occasional back brace, and prescription medication. The Veteran described difficulty sitting, standing or walking for long periods of time without rest, as well as difficulty with any bending or heavy lifting, during a flare-up. Range of motion testing showed forward flexion to 60 degrees, with extension to 15. Lateral flexion was 20 degrees, bilaterally, and rotation was 25 degrees on both right and left. The Veteran’s back pain was found to be moderate in nature and cause functional loss. After 3 repetitions, range of motion testing showed forward flexion to 45 degrees. Pain, fatigue, and lack of endurance caused this functional loss. The examiner estimated that such functional loss would occur during flare-ups as well. There was no objective evidence of pain when the back was used in non-weight bearing. Testing showed no guarding or muscle spasm, although there was disturbance of locomotion, as well as interference with standing and sitting. Radiculopathy was present in the bilateral lower extremities, but muscle atrophy and ankylosis were absent. The Veteran occasionally used a brace. At the time of the examination, the Veteran was found to not have IVDS. At an April 2018 VA examination, the Veteran described chronic moderate low back pain and stiffness, muscle spasms and flare-ups which consisted of sharp stabbing pain which made walking impossible. These symptoms were treated with medication, heating pads and rest. During flare-ups, which were brought on by mowing grass, sitting/standing/walking for long periods, the Veteran experienced sharp stabbing pain and muscle spasms. These flare-ups lasted for 2 to 3 days. The Veteran was unable to perform any heavy lifting or twisting movements due to pain, so she avoided such activities. Range of motion testing showed forward flexion to 60 degrees, with extension to 15. Lateral flexion was 20 degrees, bilaterally, and rotation was 25 degrees on both right and left. The Veteran was unable to perform repetitive-use testing due to anticipated pain. Although the examiner indicated that the Veteran experienced muscle spasm of the thoracolumbar spine, none was present at the examination. The increased pain experienced by the Veteran resulted in disturbance of locomotion and interference with sitting and standing. Muscle atrophy and ankylosis were absent. The Veteran did not have IVDS. She did not use assistive devices to treat her back disability. The examiner concluded that there was no persistent evidence of record which indicated a loss of function during a flare-up. In July 2019, a VA examiner authored a retrospective opinion regarding the Veteran’s back disability. She reviewed the Veteran’s file and noted all passive range of motion testing performed at VA examinations. The examiner explained that the Veteran reported frequent flare-ups which affected functional ability, which included avoiding activity that involved twisting and heavy lifting, bending, and walking, standing or sitting for long periods of time. The examiner concluded that although there was not enough information to provide specific functional limitations retrospective to 2008, her review of all available back examinations showed that range of motion, flare-ups, and functional loss appeared to be consistent over the years. Based on the April 2018 VA examination, it was estimated that the Veteran would lose an additional 5 to 10 degrees of range of motion, in all planes of motion, during a flare-up and after repeated use over time. Finally, in December 2019, the Veteran was provided with yet another VA examination. At that time, she described experiencing pain and muscle spasms which were treated with medication. Flare-ups occurred 3 times a week, depending on activity level. Long periods of walking, or sitting, caused a flare-up. The Veteran denied experiencing any functional loss of the spine. Range of motion testing showed her forward flexion to be to 90 degrees, with extension, lateral flexion and lateral rotation all to 30 degrees. No pain was noted at the examination, on weight bearing or on palpation of the joint. The Veteran was able to perform repetitive use testing with at least 3 repetitions, without loss of function or range of motion. Pain caused functional loss, weakness, fatigability and incoordination which resulted in a loss of extension, but not flexion. The Veteran experienced muscle spasm with did not result in abnormal gait or abnormal spine contour. Muscle atrophy and ankylosis were absent. IVDS was absent, and the Veteran did not use assistive devices to treat her disability. The Board finds that the preponderance of the evidence is against a disability rating in excess of 20 percent for the Veteran’s degenerative disc disease of the thoracolumbar spine at any time subsequent to May 31, 2013. The medical evidence shows that the disability was not manifested by forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to IVDS. Indeed, at worst, the Veteran’s forward flexion was estimated at the June 2017 to be 45 degrees with pain, which would occur during a flare-up. The Board notes that the July 2019 retrospective opinion indicated that the Veteran would lose, at most 5 to 10 degrees of motion due to a flare-up. When applying this finding to the range of motion testing (conducted outside of a flare-up period) throughout the appeal period, at no point would the Veteran’s forward flexion have been reduced to 30 degrees or less. In addition to schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca; supra. As the Veteran’s statements concerning the nature and severity of her lumbar spine disability are consistent throughout, the Board finds them credible and highly probative. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that lay evidence is credible when it is internally consistent and consistent with other evidence of record). Nevertheless, the complexity of the medical information gathered during VA examinations for determining the severity of lumbar spine disabilities requires specific medical training for interpretation. Accordingly, such opinions are beyond the competency of a lay person, and the Board finds the medical findings more probative. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Prejean v. West, 13 Vet. App. 444, 4489 (2000); see also Jandreau, supra; see also; DeLuca, supra. Consequently, the Board finds that the Veteran was not so limited by the factors noted in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 as to constitute forward flexion of 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. The examiners estimated that even during flare-ups, the Veteran’s forward flexion would be to 35 degrees, at worst. The Board notes that the December 2019 examiner estimated that, during a flare-up, right and left lateral rotation would be normal, but that extension would be reduced to zero degrees. This, however, does not approximate ankylosis of the entire thoracolumbar spine as the Veteran maintained forward flexion and bilateral lateral rotation. Accordingly, the Veteran’s functional loss attributable to her service-connected degenerative disc disease of the thoracolumbar spine does not more nearly approximate the criteria for an increased rating. The Board has also considered separate evaluations for neurological deficits associated with the Veteran’s service-connected degenerative disc disease of the thoracolumbar spine. However, service connection was granted in September 2017 for radiculopathy of the bilateral lower extremities, and the Veteran has not stated dissatisfaction with this evaluation. There is no other indication of a neurological deficit related to the Veteran’s degenerative disc disease of the thoracolumbar spine. The Board considered other potentially applicable Diagnostic Codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). In this case, the evidence does not reflect that there are any other musculoskeletal disorders of the lumbar spine under which the Veteran’s low back disability would be more properly rated under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Accordingly, a higher initial rating under alternate Diagnostic Codes is not warranted. Finally, consideration has been given to assigning a higher rating under the formula for rating IVDS. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Although the May 2013 examiner found that the Veteran had IVDS, she noted that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Subsequently, no other VA examiner found that the Veteran had IVDS, or any symptoms of such. Thus, a higher rating under IVDS is not warranted. As above, the Board acknowledges that by pursuing this claim the Veteran believes that her disability warrants a higher evaluation. Layno, supra. However, she does not have the requisite knowledge or training to be considered competent to identify a specific level of disability according to the assigned rating criteria. Jandreau, supra. This competent evidence concerning the nature and extent of her disability is reflected in the record, and such evidence directly address the criteria under which her back disability is evaluated. Thus, they are accorded greater weight than the Veteran’s subjective complaints of symptomatology for her disability. The Board finds that the preponderance of the evidence is against a higher rating. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; see also Gilbert, supra. The claim is denied. Extraschedular Rating As a final matter, a claim for an extraschedular rating was raised by the parties to the April 2016 JMR. The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Yancy v. McDonald, 27 Vet. App. 484 (2016) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). Following the April 2016 JMR, in its May 2016 remand, the Board ordered that the Veteran’s case be referred to the Director, Compensation Service (Director), for an advisory opinion regarding whether an extraschedular rating was warranted for her degenerative disc disease of the thoracolumbar spine. The Director provided advisory opinions in August and October 2016 which advised against the assignment of an extraschedular rating. 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 extra-schedular 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 extra-schedular 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). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for service-connected degenerative disc disease of the thoracolumbar spine inadequate. A comparison between the symptomatology of the Veteran’s degenerative disc disease and the rating criteria reasonably describe her disability level and symptomatology. The Veteran contends that her back disability severely limits her ability to move (including stand, walk, bend, and sit) and function due to pain and limited motion that is exacerbated with activity. The general rating formula for rating the spine specifically contemplates limitations to the range of motion of the thoracolumbar spine, as well as the presence of any muscle spasms, guarding, tenderness, gait problems, and abnormalities of the spinal contour. 38 C.F.R. § 4.71a Diagnostic Codes 5235-5243. In addition, VA is specifically required to consider functional impairment and the effects of repetitive use on the Veteran’s disability. 38 C.F.R. §§ 4.40, 4.45. Finally, the general rating formula also directs the Board to consider the orthopedic and neurologic effects of a service-connected spine disability when determining the proper schedular ratings. The Veteran is already in receipt of separate ratings for the neurological impairment associated with her service-connected degenerative disc disease of the thoracolumbar spine. The Board finds that the rating criteria clearly address her symptoms of pain, limited motion, and functional impairment and notes that same conclusion was reached by the Director in the August and October 2016 advisory opinions. Moreover, even if such symptoms were not considered contemplated by the rating schedule, the Board finds that the symptoms have not caused either marked interference with employment or required any, much less frequent, periods of hospitalization for the condition. The Board therefore finds that the symptoms and functional impairment described by the Veteran and documented in the medical records reflect a disability picture that is considered in the current schedular rating criteria. Accordingly, as neither the first nor second criteria of Thun have been met, the Board concludes that an extraschedular rating is not warranted. See 38 C.F.R. § 3.321 (b)(1); Thun, supra; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the “rating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical”). The claim remains denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.