Citation Nr: 0810621 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 03-27 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. 2. Entitlement to an initial rating in excess of 10 percent for thoracic strain. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from November 1993 to November 2000. This matter was most recently before the Board of Veterans' Appeals (Board) in December 2006, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, through the VA's Appeals Management Center (AMC) in Washington, DC. The purpose of such remand was to facilitate the completion of additional evidentiary and procedural development. Following the AMC's completion of the requested actions, the case has since been returned to the Board for further review. FINDINGS OF FACT 1. From November 25, 2000, to January 22, 2006, and from May 17, 2007, to the present, the veteran's lumbosacral strain is manifested by not more than slight limitation of motion of the lumbar spine, without evidence of ankylosis or a unilateral loss of lateral spine motion in a standing position; the preponderance of the evidence is against muscle spasm on extreme forward bending; forward flexion of the thoracolumbar spine is not less than 70 degrees and combined motion of the thoracolumbar spine is greater than 120 degrees but not in excess of 235 degrees. 2. From January 23, 2006, to May 16, 2007, the existence of moderate, but no greater, limitation of motion of the lumbar spine in association with the veteran's lumbosacral spine strain is demonstrated; the medical evidence does not show a severe lumbosacral strain with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, or a loss of lateral motion with osteoarthritic changes, or some of the above with abnormal mobility on forced motion; service connection is not in effect for degenerative disc disease and the preponderance of the evidence is against narrowing of any joint space in the lumbar spine due to a lumbar strain. 3. From November 25, 2000, to the present, the veteran's thoracic spine strain is manifested by no more than a moderate limitation of motion of the thoracic spine, with there being no showing of ankylosis; September 2003 changes to the rating criteria for the evaluation of spinal disorders do not afford a basis for the assignment of a rating in excess of 10 percent for thoracic spine strain. 4. Considerations involving pain and functional loss do not afford a basis for the assignment of schedular ratings in excess of those already assigned by the RO/AMC or as assigned herein by the Board for lumbosacral and thoracic strain. 5. There is no showing that the veteran's thoracic or lumbosacral strain is productive of a marked interference with employment or necessitates frequent periods of hospitalization, such as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. From November 25, 2000, to January 22, 2006, and from May 17, 2007, to the present, the criteria for the assignment of an evaluation in excess of 10 percent for lumbosacral spine strain have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59 (2002-2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (from September 26, 2003). 2. From January 23, 2006, to May 16, 2007, the criteria for the assignment of a 20 percent evaluation, but none greater, for lumbosacral spine strain, have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59 (2002-2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (from September 26, 2003). 3. From November 25, 2000, to the present, the criteria for the assignment of a rating in excess of 10 percent for thoracic spine strain have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59 (2002-2007); 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (from September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As noted above, this matter was previously remanded by the Board in January 2007, and on one or more prior occasions, in order to facilitate the conduct of additional evidentiary and/or procedural development. All of the actions previously sought by the Board through its prior development requests appear to have been completed in full to the extent possible, and it is of note that neither the veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify the appellant of the information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This assistance includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Finally, VA has a duty to notify the appellant that he or she should submit all pertinent evidence in his possession. During the pendency of this appeal, a decision was entered by the United States Court of Appeals for Veterans Claims (Court) in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran's status; 2) existence of disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Further, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, the Board finds that there is no issue as to providing an appropriate application form or completeness of the application. Written notice of the information and evidence needed by the veteran-appellant to substantiate and complete his claims for initial ratings, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the appellant was provided to him through the RO's VCAA letter of November 2001 and the AMC's correspondence of April, August, and December 2005 and January 2007. The appellant was thereby notified that he should submit all pertinent evidence in his possession and, in addition, was afforded the notice required under Dingess/Hartman. VCAA notice is to be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the initial VCAA notice letter as to claims for initial ratings was prepared and furnished to the veteran-appellant subsequent to the RO's decision in December 2000, which granted service connection for each of the disorders and assigned initial ratings therefor. Complete VCAA notice, including that relating to Dingess/Hartman and Vazquez-Flores, was provided to the veteran at a point in time subsequent thereto. Where the VCAA notice is defective, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders v. Nicholson, 487 F.3d 881 (2007) (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Sanders, the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. An error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield, supra, at 116; accord Sanders, supra, at *10 ("this opinion does not . . . change the rule that reversal resulted the essential fairness of the adjudication to have been affected"). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Id.; accord Sanders, supra. To show that the error did not affect the essential fairness of the adjudication, VA must demonstrate that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores, slip op. at 12 ("(a)ctual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, slip op. at 9. The record in this instance demonstrates that full VCAA notice was effectuated prior to the issuance of a supplemental statement of the case by the AMC in November 2007. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of an SOC to cure timing of a notification defect). As to the timeliness of the notice provided, more timely VCAA notice would not have operated to alter the outcome of the issue(s) on appeal. Sanders, supra (recognizing that "a demonstration that the outcome would not have been different in the absence of the error would demonstrate that there was no prejudice"). Notice of the specific findings required for initial ratings in excess of those already assigned has occurred by means of the statement of the case of August 2003 and the multiple supplemental statements of the case which followed, and the arguments set forth by and on behalf of the veteran reflect actual knowledge of the applicable rating criteria, including consideration of limitation of motion, muscle spasm, pain, and flare-ups and other elements of functional loss. In view of the foregoing, the Board cannot conclude that any defect in the substance or timing of the notice provided affected the essential fairness of the adjudication, and, thus, the presumption of prejudice is rebutted. Id.; see also Bernard v. Brown, 4 Vet. App. 384 (1993). Also, all pertinent examination and treatment records have been obtained and made a part of the claims folder to the extent that such records have been adequately identified or are otherwise available. Notice is taken that record contains a variety of medical records, primarily comprised of examination and treatment records compiled by VA medical professionals. During the course of the instant appeal, the veteran has been afforded multiple VA medical examinations and such examinations are shown to be comprehensive in scope and productive of detailed findings with which to rate the disorders in question, including the degree of pain and functional loss, notwithstanding the absence of the veteran's claims folder on the initial VA evaluation in July 2000. The only irregularity alleged by the veteran regarding his VA medical examinations is set forth in his substantive appeal of September 2003, wherein he notes that a VA examiner on a date unspecified failed to identify muscle spasm of his low back while he was attempting to bend his back forward. Such allegation will be considered by the Board in evaluating all of the evidence, including the records of VA medical treatment compiled prior to and subsequent to each VA medical evaluation as performed in July 2000, December 2001, January 2006, and May 2007, to ensure that the veteran's disorders are fairly and completely evaluated throughout the period at issue. However, as explained in more detail below, multiple examinations have failed to reveal any objective findings of muscle spasm, to include upon extreme forward bending, which is one of the criteria for a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (former rating criteria but applicable here as the veteran filed his claim prior to the enactment of the current rating criteria). Given the amount of medical documentation that is available dated during the period of time at issue, to include the multiple examinations of the back that were quite thorough in nature, the record is found to be fully adequate for the rating of the disorders in question and there is no need for the conduct of any additional medical evaluation by VA or solicitation of any further medical opinion as to any matter at issue. 38 C.F.R. §§ 3.326, 3.327 (2007). Accordingly, it is found that VA has satisfied its duties under the VCAA. Claims for Initial Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. Service connection for two separate disorders, lumbosacral spine strain and thoracic spine strain, was established by the RO through its rating decision of December 2000. At that time, an initial rating of 10 percent was assigned for lumbosacral strain under DC 5295-5292, and an initial evaluation of 10 percent was assigned under DC 5291 for thoracic strain, both effective from November 25, 2000. Given that the veteran timely appealed the initial ratings assigned, the holding in Fenderson v. West, 12 Vet. App. 119 (1999) is applicable. Under Fenderson, at the time of an initial rating, separate or "staged" ratings may be assigned for separate periods of time based on the facts found. No further change in the ratings assigned was thereafter effectuated by the RO or AMC. Hence, the questions presented by this appeal are what initial ratings are for assignment for the veteran's lumbar and thoracic spine strain from November 25, 2000, to the present. Notice is taken that the criteria for the evaluation of spinal disorders were amended during the course of the instant appeal, initially as of September 23, 2002, with respect to intervertebral disc disease, which is not herein at issue, and then on September 26, 2003. See 68 Fed. Reg. 51454-51456 (2003); 67 Fed. Reg. 54345 (2002). Because of this fact, the question arises as to which set of rating criteria applies. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (the rule of Karnas v. Derwinski, 1 Vet. App. 308 (1991), that the version most favorable to the claimant be applied when there has been a change in rating criteria has been overruled to the extent that it conflicts with authority established by the Supreme Court and United States Court of Appeals for the Federal Circuit); see also VAOPGCPREC 7-2003, 69 Fed. Reg. 25179 (2004). "[C]ongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)); Dyment v. Principi, 287 F.3d 1377, 1385 (Fed. Cir. 2002), and Bernklau v. Principi, 291 F.3d 795, 804 (Fed. Cir. 2002). Karnas has been overruled to the extent it is inconsistent with the Supreme Court's holdings. Kuzma, supra. VA's General Counsel has held that a liberalizing law would generally not have prohibited retroactive effects. If a veteran could receive a higher evaluation under the new criteria, the effect of the change would be liberalizing. Therefore, the Board will consider the claim under the old rating criteria for the entire period of the appeal, and under the new criteria from the effective date of the noted revisions. As in effect prior to September 26, 2003, DC 5291 provided for a 10 percent rating for moderate or severe limitation of motion for the thoracic spine, also referred to as the dorsal spine. Where limitation of the thoracic spine was slight, a 0 percent evaluation was for assignment. Under DC 5292, in effect prior to September 2003, slight limitation of motion of the lumbar spine was assigned a 10 percent rating, moderate limitation of motion was evaluated as 20 percent disabling, and the maximum schedular rating of 40 percent was assignable for severe limitation of motion. Under DC 5295, as in effect prior to September 26, 2003, a noncompensable rating was for assignment for lumbosacral strain where there were slight subjective symptoms only. A 10 percent rating was assignable with characteristic pain on motion. A 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending, or a unilateral loss of lateral spine motion in a standing position. A 40 percent rating was warranted if the lumbosacral strain was severe with 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, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295. Under the changes effectuated on September 26, 2003, disability of the thoracic and lumbosacral spine is evaluated together, while disability of the lumbosacral and cervical spine is evaluated separately. Under DC 5237, the assigned DC for lumbosacral strain on and after September 26, 2003, a spinal disorder, with or without regard to 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, is assigned a 20 percent rating where forward flexion of the thoracolumbar spine is 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 is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher evaluation of 30 percent pertains exclusively to the cervical spine, which is not herein at issue. For assignment of a 40 percent evaluation, there is required to be a showing of forward flexion of the thoracolumbar spine being limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The 50 percent rating requires a showing of unfavorable ankylosis of the entire thoracolumbar spine and the 100 percent evaluation necessitates unfavorable ankylosis of the entire spine. The foregoing criteria are known as the general rating formula for the evaluation of spinal diseases and injuries. Regardless of the criteria, when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Under 38 C.F.R. §§ 4.40 and 4.45, the rating for an orthopedic disorder must reflect functional limitation which is due to pain, as supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. To accord justice in the exceptional case where the assigned schedular evaluation is found to be inadequate, the VA's Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set for in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The record reflects the existence of degenerative disc disease of the veteran's spine. In an effort to ascertain whether the veteran's disc disease is part and parcel of the disabilities in question or otherwise caused or aggravated thereby, the Board by its December 2006 remand requested additional medical input from a VA physician. That physician determined in his January 2006 report and in a May 2007 addendum thereto that the veteran's disc disease of his spine was unrelated to his lumbosacral or thoracic spine strain, concluding as well that such disc disease was neither caused by nor aggravated by either service-connected disability herein under evaluation. As such evidence is not otherwise contradicted by competent evidence, the rating criteria for evaluation of disc disease or intervertebral disc syndrome are not for application in the context of the instant appeal. Lumbosacral Spine Strain For the entirety of the period in question, range of motion of the veteran's lumbar spine has been affected to a varying degree by his lumbosacral spine strain. On the initial VA medical evaluation in July 2000, forward flexion was to 78 degrees, extension was to 31 degrees, and lateral flexion was to 37 degrees to the left and to 43 degrees on the right. Forward flexion and extension, when measured on a VA examination in December 2001, were normal to 90 degrees and 30 degrees, respectively. Lateral bending was possible to 45 degrees, bilaterally, and rotation to 30 degrees, bilaterally, was possible. On a VA medical examination in January 2006, forward flexion was reduced to 70 degrees and extension was reduced to 20 degrees. Lateral flexion and rotation were to 20 degrees, bilaterally. Further range of motion testing by VA in May 2007 showed that forward flexion was to 70 degrees, and that extension, lateral bending to the right and left, and rotation to the right and left were all to 30 degrees. Such findings fail to depict the existence of more than a slight limitation of motion of the veteran's lower spine initially and for the period then extending to January 2006, with the only reduction in July 2000 being a loss of 13 degrees of forward flexion and there being no limitation of motion identified on the December 2001 evaluation. Reductions in every category were, however, identified on the VA medical examination in January 2006, indicating the loss of motion to be moderate, but no greater, with a return to not more than slight limitation of motion in May 2007 and continuing thereafter. On that basis, the Board assigns a 20 percent rating for the period from January 23, 2006, to May 16, 2007, under DC 5292, but finds that not more than a 10 percent rating is assignable under the same DC for the period from November 25, 2000, to January 22, 2006, and the period subsequent to May 16, 2007. Muscle spasm of the veteran's low back is not shown on any of the VA medical examinations in 2000, 2001, 2006, and 2007, or at the time of any outpatient medical evaluation undertaken by VA since November 2000. There is but one indication in the record, as set forth in a November 2005 report of VA outpatient care, that the veteran had declined analgesics in the past and for the most part was controlling his muscle spasm symptoms with use of cyclobenzaprine. While such entry indicates a history of muscle spasm, there is no objective showing of muscle spasm, to include on extreme forward bending from November 2000 to the present, to include upon multiple examinations that were thorough in nature, such as might warrant the assignment of a 20 percent rating under 38 C.F.R. § 4,71a, Diagnostic Code 5295. Under these circumstances, the Board must conclude that the preponderance of the evidence is against a finding that the veteran's lumbar strain is manifested by muscle spasm on extreme forward bending. The existence of a unilateral loss of lateral spine motion in a standing position, as might warrant the assignment of a 20 percent schedular evaluation under Code 5295, is likewise not objectively demonstrated. Also, listing of the whole spine, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or some of the above with abnormal mobility on forced motion, is not indicated, and the preponderance of the evidence is against narrowing of any joint space in the lumbar spine due to a lumbar strain, such as might necessitate assignment of a 40 percent rating under DC 5295. On this latter point, it is again pertinent to note that service connection is not in effect for disc disease and the only medical opinion that addresses the question of whether the veteran's lumbar strain caused or aggravated his degenerative disc disease weighs against such a relationship. Indicia of ankylosis of the lumbar spine, be it favorable or unfavorable, is not identified by the record. As such, a schedular evaluation in excess of that previously or herein assigned under alternate rating criteria in effect prior to September 26, 2003, is not for assignment. See 38 C.F.R. § 4.71a, DC 5289. For the period on and after September 26, 2003, forward flexion of the lumbar spine has been not less than 70 degrees. Moreover, the combined range of motion of the thoracolumbar spine has been greater than 120 degrees, but not greater than 235 degrees. The veteran's lumbar strain has likewise not been shown to be productive of muscle spasm, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal contour. Regarding pain and functional loss, it is noted that the veteran has voiced complaints of recurring back pain and painful motion throughout the appeal period, including on VA medical examinations in 2000 and 2001, although the impact of the veteran's pain was not specifically quantified on those occasions in terms of further reduction in range of motion. However, findings on VA medical examinations in 2006 and 2007 are clearly inconsistent with any further limitation in range of motion of the veteran's low back caused by pain, weakness, impaired endurance, fatigue, repetitive motion, incoordination, or flare-ups. Additionally, there was found to be an indication that the veteran's complaints of pain were inconsistent with the level of objective disablement shown, at least in terms of complaints of exquisite tenderness of the paraspinal muscles and the absence of demonstrated muscle spasm. As well, there was a noted difference in pain complaints and corresponding limitation when straight leg raising was performed in a sitting versus a supine position. The Board finds that the preponderance of the evidence is against a finding of additional limitation of motion of the lumbar or thoracolumbar spine due to pain or flare-ups of pain, supported by objective findings, to a degree that would support a higher rating under Diagnostic Code 5292 or 5237 and there is no medical evidence to show that the veteran has weakness, fatigue, incoordination or any other symptom or sign secondary to a lumbar strain that results in such additional limitation of motion. As such, it is determined that the assignment of an increased schedular evaluation is not warranted on the basis of pain and functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, supra. The Board does not have the authority to assign, in the first instance, a higher rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), and given the circumstances of this case, there is no basis to refer the matter to designated VA officials for consideration of an extraschedular rating. Bagwell v. Brown, 9 Vet. App. 377 (1996). Here the initial rating assigned for the veteran's lumbar strain takes into account loss of time from work, as well as functional impairment. The veteran reports that he is limited in how much weight he can lift and carry and, because of pain, he is unable to engage in certain other activities. That notwithstanding, the loss of significant time from various jobs held since December 2000 is not shown, such as might indicate the existence of a marked interference with employment. Likewise, frequent periods of hospitalization are otherwise not identified by evidence on file. Accordingly, a referral to the Chief Benefits Director or Director of the Compensation and Pension Service for a determination of whether the assignment of an extraschedular rating is appropriate is not warranted. Id. In all, with the exception of evidence indicating a reasonable basis for the assignment of a 20 percent rating, but none greater, for the period from January 23, 2006, to May 16, 2007, a preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent rating for the veteran's lumbosacral spine strain. Fenderson, supra. That being the case, the benefit-of-the- doubt doctrine is not applicable, and the appeal must be denied. 38 U.S.C.A. § 5107(b); see also, generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Thoracic Spine Strain Under the changes to 38 C.F.R. § 4.71a regarding the rating of spinal disorders effectuated in September 2003, evaluation of the lumbar and thoracic portions of the spine were combined, such that a single rating is for assignment for limitation of motion of the thoracolumbar spine. Full consideration of the schedular rating of the thoracolumbar spine was accomplished in the preceding section of this decision. What remains for consideration is the question of what initial rating for thoracic spine strain is for assignment under the rating criteria in effect prior to September 2003, which provided for separate ratings for each portion of the spine, including its cervical, thoracic, and lumbar segments. Notice is taken, however, that the veteran is already in receipt of the highest rating available for limitation of motion of the thoracic spine under DC 5291. Furthermore, indicia of a vertebral fracture or ankylosis of any type in the thoracic spine region are absent, such as might warrant an initial rating in excess of 10 percent under alternate schedular criteria in effect prior to September 2003. 38 C.F.R. § 4.71a, DCs 5285, 5286, 5288. Moreover, where a veteran is in receipt of the maximum rating for limitation of motion of a joint, the DeLuca provisions (38 C.F.R. §§ 4.40, 4.45) do not apply. See Johnston v. Brown, 10 Vet. App. 80 (1997). As such, there is no basis for the assignment of an initial schedular evaluation in excess of 10 percent due to limitation of motion or other clinical manifestation, or as a result of pain and functional loss, with respect to the veteran's thoracic spine strain. Extraschedular criteria likewise do not afford a basis with which to assign a rating in excess of 10 percent for the period from November 2000. This is so, given that the record does not include persuasive evidence that the veteran's thoracic spine strain has been productive of a marked interference with employment or has necessitated frequent periods of hospital care for its management. To that end, a basis for referral to appropriate VA officials for consideration of whether an extraschedular rating is for assignment is not demonstrated. 38 C.F.R. § 3.321(b). Inasmuch as a preponderance of the evidence is against the veteran's claim for an initial rating in excess of 10 percent for thoracic spine strain for the period from November 25, 2000, to the present, denial of this portion of the appeal is mandated. Fenderson, supra. The benefit-of-the-doubt rule is thus not for application in this instance. 38 U.S.C.A. § 5107(b); see also, generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An initial rating in excess of 10 percent for lumbosacral spine strain for the period from November 25, 2000, to January 22, 2006, and from May 17, 2007, to the present, is denied. For the period from January 23, 2006, to May 16, 2007, an initial rating of 20 percent, but none greater, is for assignment for lumbosacral spine strain, subject to those provisions governing the payment of monetary benefits. An initial rating in excess of 10 percent for thoracic spine strain for the period from November 25, 2000, to the present, is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs