Citation Nr: 0811069 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 03-04 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 40 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The veteran served on active duty from May 1981 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) from an August 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which reduced the disability rating for the veteran's service-connected lumbosacral strain from 40 percent to 10 percent. The veteran perfected an appeal of this rating decision, and in an October 2004 decision and remand, the Board restored the veteran's original disability rating and remanded the case for additional development. In February 2005, the RO effectuated the Board's decision and increased the veteran's disability rating to the original 40 percent. As this does not represent the highest possible benefit, this issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2006, the Board again remanded the case for further development; it is once more before the Board for appellate consideration. The veteran was scheduled for a hearing before a Veterans Law Judge at the RO on July 13, 2004; however, since the appellant did not report to the scheduled hearing, the request is considered withdrawn. 38 C.F.R. § 20.704 (2007). In his December 2002 substantive appeal, the veteran essentially contended that his service-connected disabilities prevented him from obtaining and maintaining employment. The Board views this statement as an inferred claim for a total disability compensation rating based on individual unemployability (TDIU) due to service-connected disabilities, and as such is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's service-connected lumbosacral strain is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The veteran's service-connected lumbosacral spine disorder does not presently cause neurological manifestations. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5237 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided such notice in March 2006. For increased rating claims, VCAA notice should include information pertaining to the assignment of disability ratings (to include the criteria for all higher ratings), as well as information pertaining to the assignment of effective dates. Dingess, supra. For an increased-compensation claim, section § 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. January 30, 2008). Further, if the Diagnostic Code 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 Diagnostic Codes, 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. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ regarding the increased rating claims. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied in part by November 2004, March 2006 and January 2007 letters sent to the appellant that fully addressed all four notice elements and the May 2006 supplemental statement of the case which set forth the criteria for a higher rating, found to be sufficient under Dingess. In fact, the November 2004 letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ which would show that his service- connected disability had worsened. In addition, the Board finds that the veteran has indicated actual knowledge as to the need to show the effect that his worsening disability has on his employment and daily life. For example, in his VA spine examination, the veteran reported that he did not have any problems with activities of daily living but did not have an occupation as he was unable to work. Although this notice was not provided before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a September 2007 supplemental statement of the case issued after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service medical records, VA medical records and examination reports, non-VA medical records, Social Security Administration records and lay statements have been associated with the file. The appellant was afforded a VA medical examination in June 2007. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran's symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). Where service connection has already been established and an increase in the disability rating is at issue, as in the present case regarding the veteran's increased rating claims for lumbosacral strain, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that the Court, in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Furthermore, consideration should also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The veteran contends that a disability rating in excess of 40 percent should be assigned for his lumbosacral strain to reflect more accurately the severity of his symptomatology. The Board observes that the criteria relating to spinal disorders were amended several times over the appeals period and the most favorable one must be applied. See 67 Fed. Reg. 48,785 (July 26, 2002), 67 Fed. Reg. 54,345-49 (Aug. 22, 2002); 68 Fed. Reg. 51,454-58 (Aug. 27, 2003; 69 Fed. Reg. 32,449 (June 10, 2004) (codified at 38 C.F.R. § 4.71a (2007)); see also VAOPGCPREC 3-2000. The veteran's lumbar spine disability is rated under Diagnostic Code 5237, for lumbosacral or cervical strain, under the current version of the criteria for spinal disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). The current Diagnostic Codes 5235 - 5243 are to be rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine (General Formula), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Incapacitating Episodes). Under the General Formula, for spine disabilities 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, a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. The regulation defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). A November 2002 VA spine examination report shows that the veteran reported chronic low back pain which varied in severity. He indicated that he had pain with household chores such as mopping or mowing the lawn and that even walking would aggravate the back condition. He described intermittent pain and tingling into the left leg, less often to the right leg. No loss of bowel or bladder control was noted. The veteran had an unremarkable gait pattern and was able to stand erect. There was no visible or palpable spasm of the back. The veteran described rather generalized tenderness to palpation of the back, particularly in the midline and left lower lumbar region. On range of motion testing, he demonstrated 60 degrees of flexion and 30 degrees of extension and he had 30 degrees of right and left lateral bending. He described pain throughout all range of motion testing. On neurological evaluation of the lower extremities, no focal strength deficits were noted. The veteran did a satisfactory heel and toe walk and was able to squat and arise again. Reflexes and sensation were still intact in the lower extremities, thigh measurements one handbreadth above the superior patellar border were 46 centimeters bilaterally and calf measurements were 36 centimeters bilaterally. On supine straight leg raising examination, only slight elevation of either leg led to complaints of back pain. This was greater on the left than on the right. However, on sitting straight leg raising examination, either leg could be elevated to 90 degrees of hip flexion with full extension of the knee without observable discomfort. The examiner noted that an October 1998 magnetic resonance imaging (MRI) report revealed a probable pars defect at L5 and that there was no evidence of root or cord compression. X-ray reports from December 1999, March 2001 and July 2002 showed disc space narrowing a L5-S1. The impression was service-connected lumbosacral strain and degenerative disc disease at L5-S1. The examiner stated, to address the Deluca provisions, the veteran demonstrated pain on range of motion testing and that, certainly, it was conceivable that pain could further limit function during a flare up or with increased use as described. The examiner noted that it was not feasible, however, to attempt to express any of this in terms of additional limitation of motion as these matters cannot be determined with any degree of medical certainty. VA medical records show ongoing treatment for the veteran's back condition. A June 2007 VA medical examination report shows that the veteran reported having pain in the lumbar spine and that it did not radiate down his legs. The veteran stated that his pain was 8.5 on a scale of 10 and that it increased in severity and flared up with certain movements. He used a cane and could ambulate for 200 yards with pain. The veteran had no other flare ups other than the ones described. There were no exacerbations or physician ordered bed rest in the previous 12 months. The examiner noted that the veteran had been seen in the neurosurgery clinic and that the diagnosis at that time was lumbar spondylosis and that there was an axonal neuropathy, found on an electromyography (EMG) but that this was not considered to be clinically symptomatic. He reported decreased sensation and numbness in his great toe and the third and fourth toe of the left foot only. He denied any motor deficits. Upon examination, the bilateral lower extremities revealed dorsalis pedis pulses 2+, decreased sensation diffusely about the left lower extremity to include the dorsal aspect of the foot and both medial and lateral sides, as well as the plantar aspect of the foot. He had 5/5 strength with great toe extension and flexion, ankle plantar flexion, dosriflexion, knee extension and flexion, hip abduction and adduction and hip flexion. Deep tendon reflexes were 2+ and symmetric for patella tendon and Achilles tendon. He had a negative straight leg raise bilaterally, down going Babinski and no clonus bilaterally. Range of motion of the lumbar spine reveals flexion to be 0 to 80 degrees, extension 0 to 20 degrees, left and right lateral rotation to be 0 to 30 degrees and left and right lateral bending to be 0 to 30 degrees. The active range of motion and the passive range of motion were the same, and there was no change with repetition. There was mild pain associated with extremes of motion. He was tender to palpation on the lumbar spine and paraspinous musculature on the left side. There was no crepitus or instability. June 2007 x-ray reports showed no fracture, dislocation or boney destructive lesion and there was no evidence of anterolisthesis or retrolisthesis. Disc spaces appeared to be well maintained except for the L5-S1 level which was mildly narrowed. The examiner noted that a June 2006 magnetic resonance imaging (MRI) showed no fracture, dislocation or boney destructive lesion, that there was no evidence of herniated nucleus pulposus or canal stenosis or impingement on a nerve root and that there was a mild disc bulge at L5-S1. A July 2005 EMG and nerve conduction study showed a mild axonal neuropathy of the nerve conduction study and a normal EMG of the bilateral lower extremities and lumbar paraspinal muscles. The assessment was mild lumbar spondylosis and mild axonal neuropathy bilateral lower extremities of unknown etiology. The examiner noted, to address the Deluca provisions, there was mild discomfort associated with examination of the lumbar spine and that it was conceivable that pain could further limit function during a flare up or with increased use as described. The examiner noted that it was not feasible, however, to attempt to express any of this in terms of additional limitation of motion as these matters cannot be determined with any degree of medical certainty. A July 2007 VA neurological examination report shows that, upon motor examination, he had normal bulk of muscle in the upper and lower extremities, his gait was slightly wide-based but he had fairly normal associated arm swing. The veteran could come up on his toes and rock back on his heels and stated that he had pain in his left leg when he attempted these maneuvers. He was able to bend over 90 degrees; however, he stated that this caused pressure on his low back. He was able to squat down to a semi-squatting position but said that this caused him some discomfort in his low back. While he sat at the end of the examination table, his leg was extended out. The veteran was able to touch his toes on each side without complaint of severe back pain or radiating discomfort down his legs. Cerebellar examination showed normal finger to nose examination. Rapid alternating movements were within normal limits. He had some difficulty walking tandem gait. The deep tendon reflexes were 2+ at the biceps, triceps and brachia radialis. He had slightly brisk 2+ patellar reflexes. The Achilles tendon reflexes were 2+ bilaterally. The plantar reflex was downgoing, he had no Hoffman's or Tromner sign and palpation of the back disclosed some muscle tightness in the perivertebral muscles. The examiner noted that there was no dimpling over the skin of the lower back and no abnormal hairy tufts on the low back. The examiner noted that the veteran had spina bifida occulata which is a common congenital anomaly in the normal population and is usually asymptomatic. If a person had no symptoms as a child, then it is unlikely he would have symptoms as an adult. Nonetheless it can be very difficult to determine if the congenital defect is contributing to the back pain in any given individual. This veteran has had chronic back pain for many years and was treated for it in the military. There is no evidence of herniated disc or any other obvious cause for back pain so one may conclude that his pain was of musculoskeletal origin. The falls in the military played a role in this although he was treated conservatively at the time suggesting that the injury was not that severe. The veteran was unemployed and claimed he had difficulty maintaining a job due to his back problems. Except for mild mechanical signs, his neurological examination was largely benign. Based on the evidence of record, the veteran's spine disorder does not warrant a higher disability rating under Diagnostic Code 5237 for lumbosacral strain. To warrant a higher disability rating, the veteran's spine disability would need to show unfavorable ankylosis of the entire thoracolumbar spine. The veteran's service-connected back disability is not manifested by this symptomatology. The Board notes that the there is no evidence the veteran's thoracolumbar spine is fixed in flexion or extension. In his November 2002 examination, the veteran had 60 degrees of flexion and 30 degrees of extension and in his June 2007 examination, he had flexion of 80 degrees and extension of 30 degrees. The examiners did not note ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board has considered rating the veteran's service- connected spine disability under the prior criteria for rating spine disabilities. Diagnostic Code 5237 came into effect on September 25, 2003. Prior to that, lumbosacral strain was rated under Diagnostic Code 5295. Under this code, severe lumbosacral strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warranted a 40 percent disability rating. This is the highest disability rating under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). However, as the veteran is already in receipt of a 40 percent disability, this would not provide him with a higher disability rating. Since the veteran has been diagnosed with degenerative disc disease, the Board has considered the rating criteria for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 4.71a, Diagnostic Code 5243 (2007). Under Diagnostic Code 5293, effective prior to September 23, 2002, severe intervertebral disc syndrome with recurring attacks with intermittent relief was to be rated 40 percent disabling. Pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief, was to be rated 60 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). There is no evidence that the veteran had pronounced intervertebral disc syndrome. On neurological evaluation at his November 2002 examination, no focal strength deficits were noted in the lower extremities and reflexes and sensation were still intact in the lower extremities. At his June 2007 examination, disc spaces appeared to be well maintained except for the L5-S1 level which was mildly narrowed. The examiner noted that, except for mild mechanical signs, his neurological examination was largely benign. A June 2006 MRI showed no fracture, dislocation or boney destructive lesion, that there was no evidence of herniated nucleus pulposus or canal stenosis or impingement on a nerve root and that there was a mild disc bulge at L5-S1. A July 2005 EMG and nerve conduction study showed a mild axonal neuropathy of the nerve conduction study and a normal EMG of the bilateral lower extremities and lumbar paraspinal muscles. The Board finds that the veteran's symptomatology throughout the appeals period does not approximate pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Therefore a higher rating under Diagnostic Code 5293, effective prior to September 23, 2002, is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under Diagnostic Code 5293, effective September 23, 2002 to September 25, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is to be rated either on the basis of incapacitating episodes or by combining under Section 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The regulation defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrant a 40 percent disability evaluation, and incapacitating episodes having a total duration of at least six weeks during the past 12 months warrant a 60 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). There is no evidence in the file that the veteran has had incapacitating episodes at any time over the relevant appeals period. The June 2007 examiner noted that there were no exacerbations or physician ordered bed rest in the previous 12 months. Therefore, the veteran's service-connected back disability would not warrant a higher rating based on incapacitating episodes under Diagnostic Code 5293, effective September 23, 2002 to September 25, 2003. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). The current rating formula for the spine became effective September 26, 2003. Under the new rating formula, Diagnostic Code 5293 became Diagnostic Code 5243, Intervertebral Disc Syndrome, and should be evaluated either under the General Formula or based on incapacitating episodes 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 § 4.25. However, as noted above, the veteran's spine disability would not warrant a higher rating under the General Formula or on the basis of incapacitating episodes. The Board has considered other diagnostic codes under the previous criteria for rating disabilities of the lumbar spine. Pursuant to the regulations in effect prior to September 26, 2003, Diagnostic Code 5289 contemplates ankylosis of the lumbar spine; however, there is no evidence that the veteran has ankylosis of the spine. The highest disability rating under Diagnostic Code 5292 is 40 percent; the veteran is already in receipt of that disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292 (2003). The Board has considered other disability ratings under the current rating criteria, which are to be rated using the General Formula. However, as noted above, veteran's disability does not warrant a higher rating under the General Formula. 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5236, 5238, 5239, 5240, 5241, 5242 (2007). The Board finds that the medical evidence demonstrates consistently and throughout that, over the relevant appeals period, the veteran meets the criteria for a 40 percent disability rating for his lumbosacral strain. Therefore, the assignment of staged evaluations in this case is not necessary. Hart, supra. There is no evidence of record that the veteran's service- connected back disability causes marked interference with employment, or necessitates frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Therefore, it is not required to remand this matter for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007). As noted above, the issue of a TDIU is referred to the RO for action deemed appropriate. Thus, the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for the veteran's back disability. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A disability rating in excess of 40 percent for lumbosacral strain is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs