Citation Nr: 0811676	
Decision Date: 04/09/08    Archive Date: 04/23/08

DOCKET NO.  05-31 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for 
bulging disc T11-T12 (hereinafter, "thoracic spine 
disorder").


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel

INTRODUCTION

The veteran served on active duty from March 2002 to January 
2004.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a July 2004 rating decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in St. 
Petersburg, Florida, which established service connection for 
the veteran's thoracic spine disorder and assigned an initial 
noncompensable (zero percent) rating, effective January 19, 
2004.  The veteran appealed, contending that a compensable 
rating was warranted.  He did not disagree with the effective 
date assigned for that rating.

By a July 2007 rating decision, the RO assigned a compensable 
rating of 10 percent for the veteran's thoracic spine 
disorder, effective January 19, 2004.  However, this case 
remains on appeal pursuant to the holding of AB v. Brown, 6 
Vet. App. 35 (1993).

The veteran provided testimony at a hearing before the 
undersigned Veterans Law Judge in January 2008.  A transcript 
of this hearing has been associated with the veteran's VA 
claims folder.

The record reflects that a motion was made to advance the 
veteran's appeal on the docket in accord with 38 U.S.C.A. 
§ 7107 and 38 C.F.R. § 20.900(c).  This motion has been 
denied.  However, the February 2008 letter informing the 
veteran of this ruling was returned as undeliverable.  In any 
event, the appeal is currently being adjudicated by this 
decision.


FINDINGS OF FACT

1.  All reasonable development and notification necessary for 
the equitable disposition of the instant case has been 
completed.

2.  The veteran's service-connected thoracic spine disorder 
is manifested, in part, by painful motion.

3.  The veteran's service-connected thoracic spine is not 
manifested by 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 is 
not greater than 120 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.  

4.  The record does not reflect that that the veteran 
experiences incapacitating episodes, as defined by VA 
regulations, which have a total duration of at least 2 weeks 
but less than 4 weeks during the past 12 months.  


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent 
for the veteran's service-connected thoracic spine disorder 
are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 
2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Code 5235-5243 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that VA has an obligation to 
notify claimants what information or evidence is needed in 
order to substantiate a claim, as well as a duty to assist 
claimants by making reasonable efforts to get the evidence 
needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 
(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2006); see also Quartuccio v. Principi, 16 Vet. App. 183, 
187 (2002).  

The United States Court of Appeals for Veterans Claims 
(Court) has held that adequate notice, as required by 
38 U.S.C. § 5103(a), must be provided to a claimant before 
the initial unfavorable agency of original jurisdiction 
decision on a claim for VA benefits.  Pelegrini v. Principi, 
18 Vet. App. 112, 120 (2004).  In this case, the veteran was 
sent pre-adjudication notice regarding his original service 
connection claim by a letter dated in April 2004, which is 
clearly prior to the July 2004 rating decision that is the 
subject of this appeal.  He was also sent additional 
notification by a letter dated in March 2006.

Taken together, these letters informed the veteran of the 
evidence necessary to substantiate his current appellate 
claim, what information and evidence he must submit, what 
information and evidence will be obtained by VA, and 
indicated the need for the veteran to advise VA of or to 
submit any evidence in his possession that was relevant to 
the case.  As such, this correspondence fully complied with 
the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the holding in Quartuccio, supra.  
Moreover, the March 2006 letter included the specific 
information regarding disability rating(s) and effective 
date(s) mandated by the Court's holding in Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  

The Board observes that the Court recently issued a decision 
in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008), regarding the information that must be provided to a 
claimant in the context of an increased rating claim.  
Specifically, the Court held that section § 5103(a) requires: 
(1) 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; (2) 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; and 
(3) 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.  

With respect to the foregoing, the Board observes that in 
Dingess/Hartman, the Court held that in cases where service 
connection has been granted and an initial disability rating 
and effective date have been assigned, the typical service-
connection claim has been more than substantiated, it has 
been proven, thereby rendering section 5103(a) notice no 
longer required because the purpose that the notice is 
intended to serve has been fulfilled.  19 Vet. App. at 490-
91.  Thus, because the notice that was provided before 
service connection was granted was legally sufficient, VA's 
duty to notify in this case is satisfied.  Moreover, the 
March 2006 letter to the veteran is sufficient in this case 
to satisfy element (3) of the Vazquez-Flores notification.  
Further, the statements submitted by and on behalf of the 
veteran have indicated familiarity with the requirements of 
elements (1) and (2).  See Mayfield v. Nicholson, 19 Vet. 
App. 103 (2005), reversed on other grounds, 444 F.3d 1328 
(Fed. Cir. 2006) (VA can demonstrate that a notice defect is 
not prejudicial if it can be demonstrated ... that any defect 
in notice was cured by actual knowledge on the part of the 
appellant that certain evidence (i.e., the missing 
information or evidence needed to substantiate the claim) was 
required and that the appellant should have provided it.); 
see also Overton v. Nicholson, 20 Vet. App. 427 (2006).

All the law requires is that the duty to notify is satisfied 
and that claimants are given the opportunity to submit 
information and evidence in support of their claims.  Once 
this has been accomplished, all due process concerns have 
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 
38 C.F.R. § 20.1102 (harmless error).  In view of the 
foregoing, the Board finds that the veteran was notified and 
aware of the evidence needed to substantiate this claim and 
the avenues through which he might obtain such evidence, and 
of the allocation of responsibilities between himself and VA 
in obtaining such evidence.  Accordingly, there is no further 
duty to notify.

In addition, the duty to assist the veteran has been 
satisfied in this case.  All relevant medical records 
pertinent to the issue on appeal are in the claims folder.  
Nothing indicates that the veteran has identified the 
existence of any relevant evidence that has not been obtained 
or requested.  He has had the opportunity to present evidence 
and argument in support of his claim, to include at the 
January 2008 Board hearing.  Moreover, he was accorded VA 
medical examinations regarding this case in June 2004 and 
June 2007.  Consequently, the Board concludes that the duty 
to assist has been satisfied.

The Board notes that it has thoroughly reviewed the record in 
conjunction with this case.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, the 
extensive evidence submitted by the appellant or on his 
behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. 
Cir. 2000) (the Board must review the entire record, but does 
not have to discuss each piece of evidence).  Rather, the 
Board's analysis below will focus specifically on what the 
evidence shows, or fails to show, on the claim.  See 
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting 
that the Board must analyze the credibility and probative 
value of the evidence, account for the evidence which it 
finds to be persuasive or unpersuasive, and provide the 
reasons for its rejection of any material evidence favorable 
to the claimant).  

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the benefit of the doubt shall be given to the 
claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt 
arises regarding service origin, such doubt will be resolved 
in the favor of the claimant. Reasonable doubt is doubt which 
exists because of an approximate balance of positive and 
negative evidence which does not satisfactorily prove or 
disprove the claim.  38 C.F.R. § 3.102.  The question is 
whether the evidence supports the claim or is in relative 
equipoise, with the claimant prevailing in either event, or 
whether a fair preponderance of the evidence is against the 
claim, in which event the claim must be denied.  See Gilbert 
v. Derwinski, 1 Vet. App. 49, 54 (1990).

In this, and in other cases, only independent medical 
evidence may be considered to support medical findings.  The 
Board is not free to substitute its own judgment for that of 
such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 
175 (1991).  Here, nothing on file shows that the veteran has 
the requisite knowledge, skill, experience, training, or 
education to render a medical opinion.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  Consequently, his 
contentions cannot constitute competent medical evidence.  
38 C.F.R. § 3.159(a)(1).


Legal Criteria.  Disabilities must be reviewed in relation to 
their history.  38 C.F.R. § 4.1.  Other applicable, general 
policy considerations are:  interpreting reports of 
examination in light of the whole recorded history, 
reconciling the various reports into a consistent picture so 
that the current rating may accurately reflect the elements 
of disability, 38 C.F.R. § 4.2; resolving any reasonable 
doubt regarding the degree of disability in favor of the 
claimant, 38 C.F.R. § 4.3; where there is a question as to 
which of two evaluations applies, assigning the higher of the 
two where the disability picture more nearly approximates the 
criteria for the next higher rating, 38 C.F.R. § 4.7; and, 
evaluating functional impairment on the basis of lack of 
usefulness, and the effects of the disability upon the 
person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath 
v. Derwinski, 1 Vet. App. 589 (1991).

In evaluating disabilities of the musculoskeletal system, 
additional rating factors include functional loss due to pain 
supported by adequate pathology and evidenced by the visible 
behavior of the claimant undertaking the motion.  38 C.F.R. 
§ 4.40.  Inquiry must also be made as to weakened movement, 
excess fatigability, incoordination, and reduction of normal 
excursion of movements, including pain on movement.  
38 C.F.R. § 4.45.  The intent of the schedule is to recognize 
painful motion with joint or periarticular pathology as 
productive of disability.  It is the intention to recognize 
actually painful, unstable, or malaligned joints, due to 
healed injury, as entitled to at least the minimum 
compensable rating for the joint.  38 C.F.R. § 4.59.  See 
also DeLuca v. Brown, 8 Vet. App. 202 (1995).

In general, the degree of impairment resulting from a 
disability is a factual determination and generally the 
Board's primary focus in such cases is upon the current 
severity of the disability.  Francisco v. Brown, 7 Vet. 
App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 
(1994).  However, in Fenderson v. West, 12 Vet. App. 119 
(1999), it was held that the rule from Francisco does not 
apply where the appellant has expressed dissatisfaction with 
the assignment of an initial rating following an initial 
award of service connection for that disability.  Rather, at 
the time of an initial rating, separate ratings can be 
assigned for separate periods of time based on the facts 
found - a practice known as "staged" ratings.

With regard to the veteran's request for an increased 
schedular evaluation, the Board will only consider the 
factors as enumerated in the applicable rating criteria.  See 
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. 
Derwinski, 2 Vet. App. 625, 628 (1992).

The current rating criteria for evaluating spine disabilities 
define normal range of motion for the various spinal segments 
for VA compensation purposes.  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 thoracolumbar spine is 240 
degrees.  Further, the normal ranges of motion for each 
component of spinal motion are the maximum that can be used 
for calculation of the combined range of motion.  See 38 
C.F.R. § 4.71a, General Rating Formula for Diseases and 
Injuries of the Spine, Note (2).

The General Rating Formula for Diseases and Injuries of the 
Spine provides that 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 10 percent rating is warranted for 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; 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.  An evaluation of 20 percent is 
warranted for 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 is 
not greater than 120 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.  An evaluation of 40 percent is warranted 
for forward flexion of the thoracolumbar spine 30 degrees or 
less; or favorable ankylosis of the entire thoracolumbar 
spine.  An evaluation of 50 percent requires unfavorable 
ankylosis of the entire thoracolumbar spine.  An evaluation 
of 100 percent requires unfavorable ankylosis of the entire 
spine.  

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.  See 38 C.F.R. § 4.71a, General Rating 
Formula for Diseases and Injuries of the Spine, Note (5).

The evaluation criteria are meant to encompass and take into 
account the presence of pain, stiffness, or aching, which are 
generally present when there is a disability of the spine.  
Therefore, an evaluation based on pain alone would not be 
appropriate, unless there is specific nerve root pain, for 
example, that could be evaluated under the neurologic 
sections of the rating schedule.  See 68 Fed. Reg. 51,455 
(Aug. 27, 2003).

The Formula for Rating Intervertebral Disc Syndrome Based on 
Incapacitating Episodes provides that an evaluation of 10 
percent is warranted for intervertebral disc syndrome with 
incapacitating episodes having a total duration of at least 
one week but less than 2 weeks during the past 12 months.  An 
evaluation of 20 percent is warranted for intervertebral disc 
syndrome with incapacitating episodes having a total duration 
of at least 2 weeks but less than 4 weeks during the past 12 
months.  An evaluation of 40 percent is warranted for 
intervertebral disc syndrome with incapacitating episodes 
having a total duration of at least 4 weeks but less than 6 
weeks during the past 12 months.  Finally, an evaluation of 
60 percent requires intervertebral disc syndrome with 
incapacitating episodes having a total duration of at least 6 
weeks during the past 12 months.

For the 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.  See 38 C.F.R. § 4.71a, Intervertebral Disc 
Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 
2004).


Analysis.  In the instant case, the Board finds that the 
veteran does not meet or nearly approximate the criteria for 
a rating in excess of 10 percent for his service-connected 
thoracic spine disorder during any portion of the appeal 
period.

The Board acknowledges that the veteran's service-connected 
thoracic spine disorder is manifested by painful motion.  See 
38 C.F.R. §§ 4.40, 4.45, 4.59.  Nevertheless, as detailed 
below, the Board finds that the pain and functional 
impairment are not of such severity as to warrant a rating in 
excess of 10 percent.

The veteran's service-connected thoracic spine disorder is 
not manifested by 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 is 
not greater than 120 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.  For example, the June 2004 VA medical 
examination noted that his forward flexion was easily 
performed at the waist with him touching his toes with 
outstretched hand and the angle being 95 degrees from zero; 
extension was zero to 30 degrees; rotation was zero to 45 
degrees, both left and right; and lateral motions were 30 
degrees both left and right.  The examiner also stated the 
veteran had a full range of motion at the spine at the waist.  
On the subsequent June 2007 VA medical examination the 
veteran had forward flexion to 90 degrees, extension to 25 
degrees, lateral flexion to 20 degrees on the right, lateral 
flexion to 30 degrees on the left.  Although there was 
painful motion, the examiner found that there was no 
additional loss of motion on repetitive use of the joint.  In 
addition, while there was muscle spasm of the thoracic spine, 
the examiner found it was not severe enough to be responsible 
for abnormal gait or abnormal spinal contour.  There was also 
no guarding, kyphosis, reverse lordosis, or ankylosis on this 
examination.

In view of the foregoing, the Board finds that there were no 
distinctive period(s) where the veteran met or nearly 
approximated the criteria for a rating in excess of 10 
percent under the General Rating Formula for Diseases and 
Injuries of the Spine.  The Board wishes to reiterate that, 
in making this determination, it acknowledges the veteran's 
complaints of pain, and is cognizant of the provisions of 
38 C.F.R. §§ 4.40, 4.45, 4.59.  However, the record does not 
contain objective evidence by which it can be factually 
ascertained that there is or would be any functional 
impairment attributable to the veteran's complaints of 
thoracic spine pain which would warrant a schedular rating in 
excess of the 10 percent evaluation currently in effect.  For 
example, as noted above, the June 2007 VA medical examination 
found no additional loss of motion on repetitive testing.  

Turning to the Formula for Rating Intervertebral Disc 
Syndrome Based on Incapacitating Episodes, the Board notes 
that the June 2004 VA medical examination stated that there 
were no episodic exacerbations except under the circumstances 
such as running.  At his January 2008 hearing, it was 
contended that the June 2007 VA examiner indicated the 
veteran had experienced 6 weeks of incapacitating episodes 
during the past 12 months.  The Board notes that the examiner 
did report 6 weeks when asked about incapacitating episodes, 
but with the statement that it represented the time lost from 
work during that period.  Consequently, it does not refer to 
incapacitating episodes as defined by VA regulations - that 
is acute signs and symptoms due to intervertebral disc 
syndrome that requires bed rest prescribed by a physician and 
treatment by a physician.  See 38 C.F.R. § 4.71a, 
Intervertebral Disc Syndrome, Note (1).  With respect to that 
requirement, the examiner indicated that the veteran had 
flare-ups every 3 to 4 months, with bedrest times 2 to 3 
days.  Assuming he required 3 days of bedrest every 3 months 
- which would be the most frequent occurrence by this 
description - then he required bedrest for a total of 12 days 
during the past 12 month period, which is less than 2 weeks.  
Accordingly, he does not meet or nearly approximate the 
criteria for a rating in excess of 10 percent under the 
Formula for Rating Intervertebral Disc Syndrome Based on 
Incapacitating Episodes.

For these reasons, the Board concludes that the veteran is 
not entitled to a schedular rating in excess of 10 percent 
for his service-connected thoracic spine disorder.

The Board notes that the regulations provide that in 
exceptional cases where the schedular evaluations are found 
to be inadequate, an extraschedular evaluation commensurate 
with the average earning capacity impairment due exclusively 
to the service-connected disability or disabilities may be 
approved provided the case presents such an exceptional or 
unusual disability picture with related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical the application of 
the regular schedular standards.  38 C.F.R. 
§ 3.321(b)(1).

The Court has held that the question of an extraschedular 
rating is a component of a veteran's claim for an increased 
rating.  See Bagwell v. Brown, 9 Vet. App. 157 (1996).  
However, under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the 
Board cannot make a determination as to an extraschedular 
evaluation in the first instance. See also VAOPGCPREC 6-96.

Here, it does not appear that the RO has evaluated whether 
the veteran is entitled to extraschedular ratings, and the 
veteran has not raised the matter himself.  Further, the 
Board observes that the June 2007 VA medical examination 
noted that there was no history of hospitalization or surgery 
due to the service-connected disability.  Although the 
examination noted he missed 6 weeks of work in the past 12 
months, in 1 to 4 day increments, due to the service-
connected disability, the Board is of the opinion that such 
impairment is has been adequately compensated by the current 
schedular rating.  Loss of industrial capacity is the 
principal factor in assigning schedular disability ratings.  
See 38 C.F.R. §§ 3.321(a), 4.1.  Indeed, 38 C.F.R. § 4.1 
specifically states: "[g]enerally, the degrees of disability 
specified are considered adequate to compensate for 
considerable loss of working time from exacerbations or 
illnesses proportionate to the severity of the several grades 
of disability."  See also Van Hoose v. Brown, 4 Vet. App. 
361, 363 (1993) (noting that the disability rating itself is 
recognition that industrial capabilities are impaired).  In 
addition, there is no evidence in the medical records of an 
exceptional or unusual clinical picture, or of any other 
reason why an extraschedular rating should be assigned.

For these reasons, the Board has determined that referral of 
the case for extra-schedular consideration pursuant to 38 
C.F.R. 3.321(b)(1) is not warranted.

In view of the foregoing, the Board finds that there were no 
distinctive period(s) during the pendency of this case where 
the veteran satisfied the requisite criteria for a higher 
rating.  Thus, the Board concludes that the preponderance of 
the evidence is against the claim, to include assignment of a 
"staged" rating(s), and it must be denied.  As the 
preponderance of the evidence is against the claim, the 
benefit of the doubt doctrine is not for application.  See 
generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 
(Fed. Cir. 2001).  Consequently, the benefit sought on appeal 
must be denied.

ORDER

Entitlement to an initial rating in excess of 10 percent for 
a thoracic spine disorder is denied.


____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs