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