Citation Nr: 0630663 Decision Date: 09/29/06 Archive Date: 10/04/06 DOCKET NO. 00-01 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a disability evaluation in excess of 20 percent for dorsolumbar strain with low back pain syndrome. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from October 1972 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied entitlement to service connection for PTSD and continued a 20 percent disability evaluation for dorsolumbar strain with low back pain syndrome. The veteran presented testimony at a personal hearing in August 2000 before a hearing officer at the RO and in March 2003 before the undersigned Veterans Law Judge. A copy of each hearing transcript was attached to the claims file. The veteran's claim for service connection for post-traumatic stress disorder is addressed in the remand attached to this decision and is remanded to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The competent and probative medical evidence shows that the veteran's dorsal lumbar strain with low back pain syndrome is primarily manifested by pain and limitation of motion which does not approach the level of severe lumbosacral strain or severe limitation of motion. In addition, forward flexion of 30 degrees or less or ankylosis of the entire thoracolumbar spine, favorable or unfavorable, is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for dorsal lumbar strain with low back pain syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (as in effect prior to Sept. 26, 2003), 68 Fed. Reg. 51,454, et. seq. (Aug. 27, 2003), 69 Fed. Reg. 32,449 (June 10, 2004) codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to notify and to assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2005). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in February 2003, May 2004, and March 2005; a rating decision in September 1999; a statement of the case in January 2000 and a supplemental statement of the case in February 2000, April 2000, July 2000, February 2001, and June 2002. The veteran also received notice at his March 2003 personal hearing before a member of the Board. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in a supplemental statement of the case issued in January 2006. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations and a medical opinion in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. II. Dorsolumbar strain with low back pain syndrome. In April 1999 the veteran requested an increase in compensation due to an increase in severity in his service- connected back disorder. In a rating decision in May 1979, service connection was granted for dorsolumbar strain and a zero percent (noncompensable) evaluation assigned effective from December 1978. In a November 1982 rating decision, the RO assigned a 10 percent evaluation effective from July 1982. Based on a Board decision in November 1983, the RO granted entitlement to a temporary total rating under Paragraph 29 of the Rating Schedule for the period of hospitalization in July 1982 and then assigned a 10 percent rating effective from August 1982. In an April 1985 rating decision, the RO determined that a temporary total evaluation was warranted for a period of hospitalization in January 1985 and thereafter the pre- hospital evaluation of 10 percent was restored effective from March 1985. In a March 1987 rating decision, the RO assigned a temporary total evaluation and effective November 1986, the pre-hospital evaluation of 10 percent was continued. In a November 1988 rating decision, the RO assigned a 20 percent evaluation effective from September 1988 for dorsolumbar strain with low back pain syndrome. In an August 1990 rating decision, the RO found that a temporary total evaluation was warranted from June to July 1990, after which the pre-hospitalization evaluation of 20 percent was assigned effective July 1, 1990. After receipt of the veteran's April 1999 claim for increase, the RO continued the 20 percent evaluation in a September 1999 rating decision. At a VA examination in February 2000, the veteran related that he continued to have back pain and described his symptoms. On examination he moved with initial stiffness upon first arising. He moved somewhat slowly with a very slight limp. He was able to stand erect. There was no spasm. Range of motion was 70 degrees of flexion, 30 degrees of extension, and right and left lateral bending of 30 degrees. He had pain on range of motion testing particularly with the lumbar flexion. He was able to heel and toe walk and to squat and rise again. Reflexes and sensation were intact in the lower extremities. Sitting straight leg raising examination was negative bilaterally. The impressions were service-connected dorsolumbar spine with low back syndrome and history of a job-related motor vehicle accident. The examiner commented that the veteran had pain on range of motion testing as noted and that the pain could further limit functional ability during the flare UPS or with increased use. However, the examiner felt it was not feasible to attempt to express any of these in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. Received in April 2000 was information regarding an October 1986 counseling session regarding the veteran's request for vocational rehabilitation benefits. After review, it had been concluded that the veteran was not entitled because the effects of his service-connected back disability did not materially hinder his ability to obtain or maintain suitable employment. At an interview in November 1999 for a substance abuse treatment program, the veteran reported that he had 14 years as a letter carrier with the U.S. Postal Service. He had an on-the-job injury in 1995 that led to his medical retirement in 1996. VA outpatient treatment records show complaints of back pain for which the veteran was given medication. At a personal hearing in August 2000 the veteran testified as to his back symptoms and the effect on his daily life. He testified that after the motor vehicle accident while working for the postal system, he saw a neurosurgeon who stated that he had new back injuries and that his back injuries from the Navy had gotten worse. VA treatment records include an MRI of the lumbar spine in January 2001 that showed degenerative disc disease and facet joint arthritis at L4-L5. There might have been mild symmetric foraminal narrowing at that level. No spinal stenosis was present. He received physical therapy for approximately six months in early 2001. At a VA examination in December 2001 the veteran described longstanding back problems. He had chronic low back pain which varied in severity. He sometimes had pain radiating into the legs and at times walked with a limp. He denied bowel or bladder dysfunction. He moved about somewhat slowly and stiffly initially, although his gait pattern did improve as he was up and about and warmed up somewhat. He was able to stand erect. No spasm was noted although he did have some slight paravertebral fullness or muscle tightness on the right, which was mildly tender to palpation. Range of motion findings were 60 degrees of flexion, 20 degrees of extension, and 20 degrees of right and left lateral bending. There was mild pain on motion. On neurological evaluation of the lower extremities, he had 5/5 strength on muscle testing. He did a satisfactory heel and toe walk and he was able to squat and arise again. Reflexes were 2+ at the knees and ankle jerks were trace to 1+ bilaterally. Sensation to light touch was intact in the lower extremities. On sitting straight leg raising examination, he had back pain with arising of either leg. No radicular complaints were noted. The impression was service-connected lumbar strain with low back pain syndrome. The examiner commented that the veteran had pain on motion as noted and that the pain could further limit functional ability during the flare UPS or with increased use. However, the examiner felt it was not feasible to attempt to express any of these in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. The examiner later dictated an addendum with the impression of the January 2001 MRI. The veteran testified at his personal hearing in March 2003 as to his back symptoms and the effect on his daily life. Evidence received in March 2004 included an arbitrator's decision on a grievance filed on behalf of the veteran regarding his removal in 1997 from his job at the U. S. Postal Service. The grievance had been denied as the arbitrator found that the evidence of record demonstrated that the discipline of removal for four charges of misconduct had been issued for just cause. The veteran was afforded a VA examination of the spine in June 2005. The examiner reviewed the veteran's file and discussed the records in detail. The examiner noted he had previously examined the veteran in February 2000 and December 2001. The veteran reported continuing problems with his back with most of the pain located in the lower back area. He had pain into the left leg to about the level of the calf at times, and less often, had pain into the right leg. There was no loss of bowel or bladder control. The veteran reported that he still received compensation for the condition related to his neck and back after the on-the- job motor vehicle accident in 1995. There had been a disagreement between the veteran and his supervisor at the post office and he was dismissed from the U.S. Post Office in 1997. He also reported that although he had applied for social security disability, he did not qualify as he had not paid social security as a government employee of the post office. During hospitalization for another disorder, he had physical therapy for his back. He had not had any prescribed bedrest for his back within the past year. Flare-UPS occurred approximately every week or two and might last up to several days. During a flare-up he had pain into his legs and difficulty with standing completely erect. He used a TENS unit during a flare-up but did not use a cane or a brace. Clinical findings were that the veteran moved with a slow, but otherwise satisfactory gait pattern. He was able to stand erect, and no spasm or tenderness of the back was noted at the time. Range of motion findings were 80 degrees of flexion and 30 degrees of extension with increased pain on motion, greater in extension than flexion. He had 30 degrees of lateral bending, bilaterally, with report of increased pain. There was no additional limitation of motion after repetitive motion. On supine straight leg raising examination, he had no radicular pain with elevation of either leg. He did have some increase in low back pain with elevation of the legs. The impression was dorsolumbar strain with degenerative changes of spine noted on x-rays. The examiner noted the report of increased pain on motion. There was no additional limitation of motion after repetitive motion. The examiner opined that it was likely that he had further limitation of function during a flare-up. It was not feasible to attempt to express this in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. The veteran was also afforded a VA neurological examination in June 2005. The veteran's complaints, symptoms, and clinical findings were recorded. The examiner's impression was that neurologically, the veteran had radicular symptoms to the lower extremity, sciatica to the left lower extremity and at times to the right lower extremity. On neurological examination, he had no significant focal deficits. After conferring with the neurologist, the VA orthopedic examiner stated that it was their opinion that the degenerative disc disease of the back was unlikely to be the result of his service-connected back condition. It was more likely than not that the degenerative changes represented the wear and tear associated with the aging process as opposed to being the direct and proximate result of his service- connected dorsolumbar strain. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. 1155 (West 2002); 38 C.F.R. Part 4 (2005). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service, and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. 4.2, 4.41. The Board notes that, where an increase in a service- connected disability is at issue, the present level of disability is of primary concern. Although review of the recorded history of a service-connected disability is important in making a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Astiban v. Brown, 6 Vet. App. 259, 261-62 (1994). As discussed in the November 2003 remand, during the pendency of the veteran's appeal, substantive changes were made to that portion of the Rating Schedule that addresses evaluation of the spine. In 2002, the evaluation criteria for Diagnostic Code (DC) 5293, for intervertebral disc syndrome, were amended. See 67 Fed. Reg. 54,345-349 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293). The amendment was effective on September 23, 2002. In 2003, further amendments were made for evaluating disabilities of the spine. See 68 Fed. Reg. 51,454-458 (Aug. 27, 2003) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). An omission was then corrected by reinserting two missing notes. See 69 Fed. Reg. 32,449 (June 10, 2004). The amendment and correction were made effective from September 26, 2003. Where a law or regulation changes after a claim has been filed, but before the administrative appeal process has been concluded, the Board considers both the former and the current schedular criteria. See, e.g., VAOPGCPREC 7-2003, 69 Fed. Reg. 25179 (2004). The effective-date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made. See Kumar v. Principi, 341 F.3d 1327 (Fed. CrI. 2003) (overruling Karmas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). See also VAOPGCPREC 3-2000 (April 10, 2000), 65 Fed. Reg. 33422 (2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2005). Under Diagnostic Code 5292, moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation. Severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5292 (prior to Sept. 26, 2003). Under Diagnostic Code 5295, a 20 percent evaluation requires muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (prior to Sept. 26, 2003). Under the amended regulations effective September 26, 2003, the evaluation criteria for rating disabilities of the spine were revised by establishing a general rating formula that applies to all diseases and injuries of the spine. The amendment made editorial changes, not representing any substantive change, to the adopted evaluation criteria for intervertebral disc syndrome to make them compatible with the new general rating formula. The seven Diagnostic Codes 5286 through 5292 that involved findings of ankylosis or limitation of motion of the spine were deleted. The amended regulations added degenerative arthritis of the spine, DC 5242, which will ordinarily be evaluated under the general rating formula for diseases and injuries of the spine except when X-ray findings, as discussed under DC 5003, are the sole basis of its evaluation. Under the amended regulations, new diagnostic codes were assigned for conditions already in the Rating Schedule, which included DC 5237 for lumbosacral strain and DC 5243 for intervertebral disc syndrome. The General Rating Formula for Diseases and Injuries of the Spine is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the general rating formula provides that unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent evaluation. Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent evaluation. Forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent evaluation. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or combined range of motion of the cervical spine limited to not greater than 170 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 warrants a 20 percent evaluation. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 warrants a 10 percent evaluation. The notes to the General Rating Formula are: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Evaluate intervertebral disc syndrome (preoperatively or postoperatively) 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 Sec. 4.25. See 68 Fed. Reg. 51,454-458 (Aug. 27, 2003); 69 Fed. Reg. 32,449 (June 10, 2004). Where evaluation is based on limitation of motion and functional loss is alleged due to pain on motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 must also be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). As discussed above, during the pendency of the veteran's claim and appeal, changes were made to that portion of the Rating Schedule that addresses evaluation of intervertebral disc syndrome, effective September 23, 2002, and evaluation of disorders of the spine, effective September 26, 2003. Because the veteran's claim was filed before the regulatory changes occurred, he is entitled to consideration of both the old and revised regulations. However, the retroactive reach of the revised regulation can be no earlier than the effective date of that change, and the Board must apply only the earlier version of the regulation for the period prior to the effective date of the change. A review of the record demonstrates that the RO considered the old and new rating criteria, and the veteran was made aware of the changes. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran is in receipt of a 20 percent evaluation under the old regulations. Upon review of the record, the Board is of the opinion that an evaluation in excess of 20 percent is not warranted for the veteran's service-connected lumbosacral spine disorder under either the old or the revised regulations. A 40 percent evaluation is not warranted under the prior regulations for the evaluation of lumbosacral strain as the evidence of record does not show severe lumbosacral strain manifested by listing of the whole spine to the opposite side or a positive Goldthwaite's sign. Although previous x-rays revealed mild facet disease or facet joint hypertrophy, this manifestation is not sufficient for a finding that the veteran's service-connected low back disorder more nearly approximates a 40 percent evaluation. Marked limitation of forward bending in a standing position is not shown as the veteran had flexion to only 10 degrees less than normal. No loss of lateral motion was shown nor was abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (prior to September 26, 2003). At the June 2005 VA examination, the veteran had forward flexion to 80 degrees and 30 degrees of extension, and 30 degrees of lateral bending, bilaterally with increased pain on motion with no additional limitation of motion after repetitive motion. Although the examiner opined that it was likely that the veteran had further limitation of function during a flare-up, the examiner did not feel that this could be expressed in terms of additional limitation of motion with any degree of medical certainty. However, even considering the effects of pain on use and during flare-ups, and the other factors addressed in DeLuca v. Brown, supra, there is no objective evidence of more than characteristic pain on motion of the low back and becoming painful on use. See 38 C.F.R. §§ 4.40, 4.45. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The Board notes that the range of motion findings shown at the June 2005 examination were normal for extension and lateral flexion, bilaterally, and flexion lacked only 10 degrees from normal. The Board finds that the effects of pain reasonably shown to be due to the veteran's service- connected low back disability are contemplated in the 20 percent rating assigned. There is no indication in the record that pain, due to disability of the low back, causes functional loss greater than that contemplated by the 20 percent evaluation currently assigned. 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, supra. The Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4, as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In that regard, consideration has been given to whether any other applicable diagnostic code under the old regulations provides a basis for higher evaluation for the lumbar spine disability. The evidence does not show severe limitation of motion that would warrant a 40 percent evaluation under Diagnostic Code 5292. As there is no evidence that the veteran's spine is ankylosed, or has ever been fractured, nor does the veteran so contend, 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286 and 5289 (prior to Sept. 26, 2003) are not for application. Under the old or revised regulations, as the evidence of record does not show that the veteran's degenerative disc disease of the back is a direct or proximate result of his service-connected dorsolumbar strain, DC 5293 or 5243 for evaluation of intervertebral disc syndrome are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5293 (prior to Sept. 23, 2002 and Sept. 26, 2003), and 5243 (effective September 26, 2003). As provided in the amended regulations, under the General Rating Formula for Diseases and Injuries of the Spine, based on limitation of motion of the lumbar spine, that includes symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent evaluation requires forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. This is not shown by the evidence of record as at the June 2005 examination, forward flexion was to 80 degrees. In fact, the evidence of record does not show that the veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees that would warrant a 20 percent evaluation. Nor does the evidence show a combined range of motion of the thoracolumbar spine not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour that would warrant a 20 percent evaluation under the amended regulations. Based on the evidence of record there are simply no manifestations that could offer the potential for an evaluation greater than 20 percent under the revised criteria. In summary, for the reasons and bases discussed above, the Board finds that the preponderance of the competent and probative evidence of record is against granting an evaluation in excess of 20 percent for the veteran's lumbosacral spine disability under the old or revised regulations. Both the old and new regulations for evaluating the veteran's lumbosacral spine disorder were considered by the Board in this case, because of the amendments which occurred during the pendency of the claim. See VAOPGCPREC 7-2003, supra. In any future claims and adjudications, the RO will apply only the amended rating criteria, and will consider evidence developed after the present claim. The preponderance of the evidence is against the claim for a rating in excess of 20 percent for service connected dorsal lumbar strain with low back pain syndrome. Thus, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 20 percent for service-connected dorsal lumbar strain with low back pain syndrome is denied. REMAND The Board finds that further development is needed in this case prior to the adjudication of the appeal of the claim for service connection for post-traumatic stress disorder. The veteran claims that he experienced stressors in service during his SERE training that lead to the development of the post-traumatic stress disorder for which he seeks service connection. The veteran's service personnel records show that he completed and graduated from a five-day course of Survival, Evasion, Resistance, and Escape (SERE) training in April 1975 at "FASOTRAGRUPAC, NASNI, SAN DIEGO, CA. 92135." He claims that his stressors occurred during this course. The Board feels that further information is needed regarding the SERE course prior to adjudicating this appeal. Accordingly, this claim is remanded for the following development: 1. Contact the appropriate Naval agency to request additional information concerning the Survival, Evasion, Resistance, and Escape training at "FASOTRAGRUPAC, NASNI, SAN DIEGO, CA. 92135." The Naval agency should be requested to provide additional information about this course as offered in April 1975, to include a statement of course content and whether this five-day course included training using a "waterboard," pouring water over trainees' heads, or submersing trainees' heads in water. All attempts to obtain this information should be documented in the claims folder. 2. If the above request yields additional information regarding the content of the SERE course, schedule the veteran for a VA post-traumatic stress disorder examination. The examiner should provide an opinion as to whether a diagnosis of post-traumatic stress disorder is still warranted, and should specify whether or not the veteran meets each component of the diagnosis of post- traumatic stress disorder as found in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) of the American Psychiatric Association. 3. Then, readjudicate the claim for service connection for a post-traumatic stress disorder. If action remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity for response. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs