Citation Nr: 0811326 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-37 910A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to an increased rating for chronic lumbosacral strain, evaluated as 10 percent disabling thru August 14, 2005. 2. Entitlement to an increased rating for chronic lumbosacral strain, evaluated as 10 percent disabling from August 15, 2005 thru October 24, 2007. 3. Entitlement to an increased rating for chronic lumbosacral strain, currently evaluated as 10 percent disabling from October 25, 2007. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from October 1965 to July 1967. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In May 2005, the veteran presented testimony during a hearing before RO personnel; a transcript of that hearing is of record. In May 2007, the Board adjudicated six other claims and remanded the remaining matter set forth on the first page of this decision to the RO to afford due process and for other development. Following its completion of the Board's requested actions, the RO continued the denial of the veteran's claim (as reflected in a supplemental SOC (SSOC) issued in January 2008) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. During the span of the appeal period, spinal ankylosis is not present; no appreciable neurological manifestations are clinically evident, and there is no evidence of any episodes of incapacitation where bed rest was prescribed by a physician. 3. For the period prior to August 15, 2005, the veteran's lumbar strain manifests by slight limitation of motion or a mild disorder with characteristic pain on motion. 4. For the period from August 15, 2005 thru October 24, 2007, the veteran's lumbar strain manifests by forward flexion was to 60 degrees and a combined range of motion of 110 degrees. 5. For the period from October 25, 2007, the veteran's lumbar strain manifests by forward flexion was to 70 degrees and a combined range of motion of 190 degrees. CONCLUSIONS OF LAW 1. Prior to August 15, 2005, the criteria for a rating in excess of 10 percent for chronic lumbosacral stain were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5292, 5293, 5295 (before September 26, 2003) and 5237, 5243 (after September 26, 2003). 2. From August 15, 2005 thru October 24, 2007, the criteria for a 20 percent rating, but no higher for chronic lumbosacral stain were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5237, 5243 (after September 26, 2003). 3. From October 25, 2007, the criteria for a rating in excess of 10 percent for chronic lumbosacral stain were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5237, 5243 (after September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in letters from the RO dated in March 2003, March 2006, March 2007 and May 2007. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board acknowledges a recent decision from the Court that provided additional guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask the VA 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. 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of his increased rating claim. In this regard, during the course of this appeal the veteran has been represented at the RO and before the BVA by an accredited Veterans Service Organization (VSO) recognized by the VA, specifically the New Jersey Department of Military and Veterans' Affairs and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including particularly in this case, those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, after the veteran and his VSO representative were provided copies of the Statement of the Case (SOC) as well as the several SSOC's issued by the RO, the representative submitted a VA Form 646 (Statement of Accredited Representative in Appealed Case) dated in January 2008 in which the representative essentially acknowledged receipt. The SOC and SSOC's contained a list of all evidence considered, a summary of adjudicative actions, included all pertinent laws and regulation, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. The Board additionally notes that at the veteran's hearing in May 2005, the veteran's representative advanced additional argument on the basis of the relevant evaluation criteria. In the Board's opinion all of this demonstrates actual knowledge on the part of the veteran and his representative of the information that would have been included in the more detailed notice contemplated by the Court in the Vazquez- Flores case. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. The appellant has not identified any additional evidence that could be obtained to substantiate the claim. Clearly, from submissions by and on behalf of the veteran, he is fully conversant with the legal requirements in this case. Thus, the content of these letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. Factual Background Service connection for the veteran's chronic lumbar strain was established pursuant to a January 1971 rating. The present appeal derives from a claim for increase filed in September 2002. The veteran was afforded a VA examination in March 2003. Regarding the lumbar spine, the veteran denied the presence of pain while at the examination, but claimed to experience low back pain once a week and was weather sensitive to pain. When he did have pain, it was 6-7/10. He denied numbness or weakness to the lower extremities. Objectively, there was minimal tenderness to palpation and range of motion was reported as pain free. It was described as flexion to 90 degrees and extension to 30 degrees. Impression, in pertinent part, was low back pain with early degenerative joint disease. The examiner commented that "[i]t is likely that that the injuries that the patient sustained is contributed by the injuries sustained in service" In May 2005, the veteran gave testimony regarding his back at a hearing at the RO. He stated that as he got older, his back bothered him more. He used Advil to relieve the pain. Sometimes his wife put a warm towel on his back to relieve muscle spasm. Among the reasons he retired from the post office was due to back pain. The veteran was afforded a VA lumbar spine examination in August 2005. The veteran reported progressively more intense back pain. He reported that while he was employed, the pain was constant, but since his retirement, pain was intermittent with weight bearing activity and prolonged sitting. He used over-the-counter medication for relief. The examiner noted that a March 2003 X-ray revealed mild L4-5 disc space narrowing. On physical examination, forward flexion was to 60 degrees, backward extension was to 10 degrees, lateral flexion was to 10 degrees bilaterally, rotation was to 10 degrees bilaterally with end range pain. Straight leg raising was negative. Strength was 5/5 and senses were intact in the lower extremities. Gait was normal and antalgic. X-rays revealed L4-5 degenerative changes. The veteran was afforded a VA spinal examination in October 2007. The veteran reported off and on back pain. He experienced one or two episodes per year, lasting from one- to-two days up to two weeks. There were no incapacitating episodes; no radiation into the lower extremities; no sensation changes; no weakness; no bowel or bladder changes; and no interference with daily activities. The veteran reported aggravation by prolonged sitting or bending. He was not receiving physical therapy. On physical examination, deep tendon reflexes were 2/4; muscle strength 5/5 both distal and proximal lower extremities. Sensation was grossly intact. Muscle tone was normal and Babinski's downgoing bilaterally. There was no axial tenderness; no deformities; no cellulitis; no pain to palpation and no spasms. Forward flexion was to 70 degrees, backward extension was to 20 degrees, lateral flexion was to 20 degrees bilaterally, rotation was to 30 degrees bilaterally. After repetitive motion there was no additional loss of joint function due to pain, fatigue, or lack of coordination. No atrophy of spine or lower extremities was appreciated. There was no observed kyphosis or scoliosis or lordosis or abnormal shape of the spine. Gait was normal. The examiner additionally felt the intervertebral disc syndrome was present but less likely related to service as the disorder is a chronic disorder caused by daily living and long term trauma or excessive stress to the lumbar spine, which was not the case with this veteran. Law and Regulations Disability ratings are rendered upon the VA's Schedule for Rating Disabilities as set forth at 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations and the disability must be viewed in relation to its history. 38 C.F.R. § 4.1. The higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. While lost time from work related to a disability may enter into the evaluation, the rating schedule is "considered adequate to compensate for considerable loss of working time from exacerbations proportionate" with the severity of the disability. 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (the Court) held that in evaluating a service-connected disability, functional loss due to pain under 38 C.F.R. § 4.40 (1997) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1997) must be considered. The Court also held that, when a Diagnostic Code does not subsume 38 C.F.R. §§ 4.40 and 4.45, those provisions are for consideration, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In adjudicating the claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is established for lumbosacral strain, but the veteran appears to have additional lumbar pathology, i.e. degenerative disc disease and intervertebral disc syndrome, for which the record is ambiguous as to any bona fide relationship of such disorders to service. Furthermore, in Mittleider v. West, 11 Vet. App. 181, 182 (1998) the Court observed that the VA wrote that " 'when it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service- connected condition.' 61 Fed. Reg. 52698 (Oct. 6, 1998)." Id. Therefore, the Board finds that resolving all reasonable doubt in favor of the veteran, as the degree of his overall disability cannot be apportioned between the service- connected and nonservice-connected disorders, the Board, for the purpose of this adjudication will attribute all lumbar symptomatology to the veteran's service-connected disorder. During the pendency of this appeal, the criteria for intervertebral disc disease, 38 C.F.R. § 4.71a, Diagnostic Code 5293, were revised effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002) ("revised disc regulations"). Further, the remaining spinal regulations were amended and the diagnostic codes renumbered in September 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) ("revised spinal regulations"). Where the law or regulations governing a claim are changed while the claim is pending the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The veteran's lumbosacral spine disorder is evaluated according to the following criteria: 528 6 Spine, complete bony fixation (ankylosis) of: Unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) 10 0 Favorable angle 60 38 C.F.R. § 4.71a, Diagnostic Code 5286, prior to September 26, 2003 528 9 Spine, ankylosis of, lumbar: Unfavorable 50 Favorable 40 38 C.F.R. § 4.71a, Diagnostic Code 5289, prior to September 26, 2003 5292 Spine, limitation of motion of, lumbar: Severe 40 Moderate 20 Slight 10 (prior to September 26, 2003) 5293 Intervertebral disc syndrome: Pronounced; 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, little intermittent relief 6 0 Severe; recurring attacks, with intermittent relief 4 0 Moderate; recurring attacks 2 0 Mild 1 0 Postoperative, cured 0 (prior to September 23, 2002) 5295 Lumbosacral strain: Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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 4 0 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position 2 0 With characteristic pain on motion 1 0 With slight subjective symptoms only 0 (prior to September 23, 2003) 5293 Intervertebral disc syndrome: Pronounced; 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, little intermittent relief 60 Severe; recurring attacks, with intermittent relief 40 Moderate; recurring attacks 20 Mild 10 Postoperative, cured 0 Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 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. Formula for Rating Intervetebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months.... 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months....... 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months...... 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Effective September 23, 2002 The Spine 523 7 Lumbosacral or cervical strain General Rating Formula 524 2 Degenerative arthritis of the spine (see also diagnostic code 5003) 524 3 ***Intervertebral disc syndrome ***Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under Sec. 4.25. General Rating Formula for Diseases and Injuries of the Spine: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): Ratin g 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 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 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note: (2) (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note: (3) In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note: (4) Round each range of motion measurement to the nearest five degrees. Note: (5) For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note: (6) Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a effective September 26, 2003 Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 524 3 Intervertebral disc syndrome Ratin g With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 Note (1): For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. Effective September 26, 2003 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). The Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). A review of clinical findings indicates that the veteran could perform range of motion testing of the spine throughout the entire rating period. As such clearly establishes that ankylosis is not present, the diagnostic criteria set forth pertaining to ankylosis under the old and new criteria are inapplicable and cannot serve as the basis for an increased rating. Moreover, there is no evidence of any episodes of incapacitation where bed rest was prescribed by a physician. Accordingly, the criteria for incapacitating episodes likewise are inapplicable and cannot serve as the basis for an increased rating. For the period prior to August 15, 2005, the Board concludes that the clinical data representing the veteran's lumbar disorder is best described by the March 2003 VA examination, which reflects reports increasing pain but the absence of numbness or weakness in the lower extremities. Pain was denied at the examination but was claimed to occur once a week and was weather sensitive. There was minimal tenderness to palpation and, significantly, range of motion was reported as pain free, and both flexion (90 degrees) and extension (30 degrees) were in the normal range (38 C.F.R. § 4.71a, note 2, following the General Rating Formula for Diseases and Injuries of the Spine). The Board interprets such symptomatology as representing no greater disablement than slight limitation of motion or a mild disorder with characteristic pain on motion, which is consistent with the assigned 10 percent evaluation. Certainly, the evidence does not demonstrate symptomatology approaching muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position or any appreciable loss of lumbar motion so as to demonstrate that a higher evaluation is warranted. Accordingly, the preponderance of the evidence is against any higher evaluation than 10 percent for the time period through August 14, 2005. The August 15, 2005 examination reflects another cognizable distinct degree of disability. At that time, again there was no neurological symptomatology associated with the veteran's service connected lumbar disorder but reported range of motion studies: forward flexion was to 60 degrees, backward extension was to 10 degrees, lateral flexion was to 10 degrees bilaterally, rotation was to 10 degrees bilaterally with end range pain, which results in a combined range of motion of 110 degrees. Under the revised evaluation criteria forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees supports a 20 percent evaluation despite that the symptomatology is marginally within the bounds of that rating level. The preponderance of the evidence is against any higher evaluation because forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is not demonstrated or approximated. The VA back examination on October 25, 2007 represents a much more comprehensive evaluation of the veteran's disability at issue and another period of disability. At that time there were no incapacitating episodes; no radiation into the lower extremities; no sensation changes; no weakness; no bowel or bladder changes; and no interference with daily activities. On physical examination, deep tendon reflexes were 2/4; muscle strength 5/5 both distal and proximal lower extremities. Sensation was grossly intact. Muscle tone was normal and Babinski's downgoing bilaterally. There was no axial tenderness; no deformities; no cellulitis; no pain to palpation and no spasms. Forward flexion was to 70 degrees, backward extension was to 20 degrees, lateral flexion was to 20 degrees bilaterally, rotation was to 30 degrees bilaterally, which translates to a combined range of motion of 190 degrees. After repetitive motion there was no additional loss of joint function due to pain, fatigue, or lack of coordination. No atrophy of spine or lower extremities was appreciated. There was no observed kyphosis or scoliosis or lordosis or abnormal shape of the spine. Gait was normal. Applying the General Rating Formula to the foregoing findings indicates that the disability warrants no more than 10 percent for the time period from October 25, 2007 because the evidence demonstrates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. In the absence of more severe symptomatology, any higher evaluation is not demonstrated or approximated. The Board notes the regulation revisions effective September 26, 2003, also allow for a possible schedular rating based upon alternative separate, combined ratings for chronic orthopedic and neurological manifestations of intervertebral disc syndrome. The Board finds, however, that the veteran's orthopedic disability warrants no more than the evaluations for limitation of lumbar spine motion for the time periods detailed above and that there is no evidence of mild, severe, or incomplete sciatic nerve paralysis. As the August 2005 and October 2007 VA examinations revealed normal lower extremity strength and sensory responses, the Board finds a separate compensable rating for a neurologic disability or a combined schedular rating in excess of those provided above is not warranted under the rating criteria effective after September 26, 2003. After consideration of all of the evidence, the Board finds that the preponderance of the evidence is otherwise against the claims. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule applies only when the positive and negative evidence renders a decision "too close to call"). There is no competent evidence of record which indicates that the veteran's lumbar strain has caused marked interference with employment beyond that which is contemplated under the schedular criteria, or that there has been any necessary inpatient care. Thus, there is no basis for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). There is nothing in the evidence of record to indicate that the application of the regular schedular standards is impractical in this case. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). ORDER Entitlement to an evaluation in excess of 10 percent for chronic lumbosacral stain for the period prior to August 15, 2005 is denied. Entitlement to a 20 percent evaluation for chronic lumbosacral stain for the period from August 15, 2005 thru October 24, 2007 is granted, subject to the provisions governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for chronic lumbosacral stain for the period from October 25, 2007 is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs