Citation Nr: 0813962 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 00-08 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a higher initial disability rating for mechanical low back pain syndrome with L5-S1 and L2-L4 discogenic disk disease and degenerative changes, rated as 50 percent disabling from September 26, 2003, and rated as 20 percent disabling from May 1, 1999 to September 25, 2003. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from February 1969 to October 1970 and from February 1981 to April 1999. Effective September 26, 2003, the veteran is in receipt of a total disability evaluation based on individual unemployability. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2000 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board and was remanded in December 2001, July 2003, and December 2005. The veteran testified at an RO hearing in June 2000 and at a Board hearing via videoconference in June 2001. By way of a February 2008 statement, the veteran notified VA that he no longer wished to have another Board hearing. FINDINGS OF FACT 1. For the time period from September 26, 2003 to present, the veteran's service-connected mechanical low back pain syndrome with L5-S1 and L2-L4 discogenic disk disease and degenerative changes is manifested by pain, arthritis, discogenic disk disease, limitation of motion, and muscle spasms, with no evidence of pronounced intervertebral disc syndrome, ankylosis of the entire thoracolumbar spine or incapacitating episodes (as defined by regulation) of at least 6 weeks in the last 12 months. 2. For the time period from May 1, 1999 to September 25, 2003 to present, the veteran's service-connected mechanical low back pain syndrome with L5-S1 and L2-L4 discogenic disk disease and degenerative changes was manifested by moderate limitation to range of motion, arthritis, discogenic disk disease, and muscle spasms with no evidence of severe limitation of motion of the lumbar spine, severe disability from intervertebral disc syndrome, severe lumbosacral strain, with listing of the whole spine to 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, or physician-prescribed bedrest. CONCLUSIONS OF LAW 1. For the time period from September 26, 2003 to present, the criteria for entitlement to a disability rating in excess of 40 percent for mechanical low back pain syndrome with L5- S1 and L2-L4 discogenic disk disease and degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2007). 2. For the time period from May 1, 1999 to September 25, 2003, the criteria for entitlement to a disability rating in excess of 50 percent for mechanical low back pain syndrome with L5-S1 and L2-L4 discogenic disk disease and degenerative changes were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003), Diagnostic Codes 5237, 5242, 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claim, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of a letter from the RO to the veteran dated in April 2004. This letter effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. Additionally, as discussed below, a March 2006 letter informed the veteran of how the RO assigns disability ratings and effective dates if a claim for service connection or an increased rating is granted and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service treatment records, VA medical treatment records, private medical records and lay statements are associated with the claims file. The veteran was afforded a VA examination. See Charles v. Principi, 16 Vet. App. 370 (2002) (Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant]; contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the [VA] to make a decision on the claim."). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the veteran that, to substantiate a claim, the veteran 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 veteran's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the veteran'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 veteran. Additionally, the veteran 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 veteran 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. The veteran's claim for an increased rating was received in 1999. In an April 2004 letter, the veteran was advised that in order for an increased rating to be granted, he would need to submit evidence of a greater level of disability than previous assessed in accordance with specific VA criteria for that disability. The veteran was specifically informed of the rating criteria for spine disabilities, as well as how the evidence of record did not substantiate his claim, through the issuance of January 2003, January 2005, March 2005, June 2007 and October 2007 Supplemental Statements of the Case. These were issued to the veteran after receipt of additional medical evidence by VA. The veteran was specifically notified that VA would evaluate a service-connected disorder by reference to a schedule for rating disorders, and that he had an additional opportunity to provide VA with information as to ongoing treatment, statements from employers and acquaintances; as well as any reports generated by the Social Security administration. Of particular note, in February 2005, the veteran submitted a statement discussing the schedule for rating spinal disabilities and how he believed his disability met the criteria for a higher disability rating. Thus, the record shows that although the veteran was not specifically advised in accordance with Vazquez-Flores, it cannot be doubted that through multiple supplemental statements of the case, followed by a final readjudication of the claim in October 2007, a reasonable person would have known that evidence to show a worsening of the disorder within the parameters of the rating schedule and its impact on employment and daily life was necessary. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but he has also demonstrated actual knowledge of the applicable rating criteria in his February 2005 statement. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the error did not affect the essential fairness of the adjudication. The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analysis Disability ratings are determined by the application of the Schedule For Rating Disabilities, which is based on the average impairment of earning capacity resulting from a service-connected disability. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet .App. 589 (1995). Since the veteran is appealing the original assignment of a disability rating following an award of service connection, the severity of her service-connected bilateral hearing loss is to be considered during the entire period from the initial assignment of the rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's lumbar spine disability is currently rated by the RO under the Diagnostic Codes 5242-5243. The Board notes that during the pendency of the veteran's appeal, VA promulgated regulations for the evaluation of intervertebral disc syndrome, 38 C.F.R. § 4.71a, Code 5293, effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). Later, VA promulgated regulations for the evaluation of the remaining disabilities of the spine, effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003), codified, in pertinent part, at 38 C.F.R. 4.71a, Diagnostic Codes 5237, 5242, 5243, effective September 26, 2003. The amendments renumber the diagnostic codes and create a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date. As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the veteran. Under the previous version of the rating criteria- Under Code 5292, limitation of motion of the lumbar spine is assigned a 20 percent rating for moderate limitation of motion, and a maximum schedular rating of 40 percent for severe limitation of motion. Under Code 5293, when disability from intervertebral disc syndrome is moderate, with recurring attacks, a 20 percent evaluation is warranted. A 40 percent rating is in order when disability is severe, characterized by recurring attacks with intermittent relief. A maximum schedular rating of 60 percent is awarded when disability from intervertebral disc syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Under Code 5295, if there is lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position, a 20 percent evaluation is in order. A maximum schedular rating of 40 percent is awarded when lumbosacral strain is severe, with listing of the whole spine to 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. Under the amended version of the rating criteria- Lumbosacral or cervical strain is Code 5237. Degenerative arthritis of the spine is Code 5242. Intervertebral disc syndrome is Code 5243. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to Codes 5235 to 5243 unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the general rating formula for diseases and injuries of the spine, ratings are assigned, in pertinent part, as follows: 20 percent-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; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphyosis; 40 percent-forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 50 percent - unfavorable ankylosis of the entire thoracolumbar spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. 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 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. 5237 Lumbosacral strain 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated 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. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating 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. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent evaluation is in order. Note (1) provides that 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. The relevant competent medical evidence of record includes a November 1999 VA examination report which shows that the veteran complained of back pain, particularly with activity. He denied bowel or bladder problems and there was no evidence of paresis or paralysis in the lower extremities. On examination, the veteran's spine had a mild lumbar spine curve reversal. Forward flexion was to 65 degrees, extension was to 20 degrees, lateral bending was to 25 degrees and rotation was to 35 degrees. Movement was done gently as sudden movement caused paraspinal bilateral tightness. Sacroiliac joints were not tender. Straight leg testing was negative to 90 degrees bilaterally. The lower extremities were normal neurologically. The diagnosis was mechanical low back pain syndrome with L5-S1 and L2-L4 discogenic disk disease. Functional impairment was characterized as "moderate to moderately significant." A May 2002 VA examination report shows that the veteran reported stiffness and back pain that radiated into his right hip. The examiner noted that a 1998 Magnetic Resonance Imaging (MRI) report showed degenerative disk disease of the lumbar spine and more recent x-ray images showed spondylitic changes of the spine with narrowing of the intervertebral space between L5 and S1. On examination, the veteran was noted to have pain. His gait was slow and he had muscle spasms over the area of the thoracolumbar spine. There was tenderness over the lumbosacral spine and movement of the lumbar spine was guarded and painful with muscle spasms. Forward flexion of the spine was to 50 degrees without pain. Extension was to 30 degrees, lateral flexion was to 30 degrees on both sides, and lateral rotation was to 20 degrees. Straight leg raising test was negative. Deep tendon reflexes were present and normal in the lower extremities. X- ray images of the spine revealed that the lumbar lordosis was maintained. There was marked narrowing of the disk space at L1-L2 and L5-S1 associated with moderate corresponding vertebral spurring indicating degenerative disk disease at the two levels. There was mild anterior vertebral spurring at L3 and L4. No other abnormality was noted. The diagnosis was degenerative spondylosis of the lumbar spine and degenerative disk disease. Functional loss was characterized as moderately severe. A February 2004 VA x-ray report showed mild anterior wedging of the L1 vertebral body and advanced disk space narrowing at L1-2 and at the L5-S1 level, with mild to moderate disk space narrowing seen in the posterior aspect of the disk space at the L4-L5 level, with scattered spondylosis involving every level of the lumbar spine to variable degrees. A May 2004 electromyograph (EMG) report and Nerve Conduction Test of the veteran's lower extremities were normal. A May 2004 VA examination report shows that the veteran reported constant back pain which extended to his legs. The veteran reported severe flare-ups which caused him to have to rest in bed to recover. The veteran denied any bowel or bladder complaints. On examination, the veteran was in a moderate amount of pain. He was sitting uncomfortably in his chair. Range of motion of the back was to 8 degrees of forward bending, 5 degrees of back bending, 4 to 8 degrees of lateral bending, and 7 to 8 degrees of lateral rotation. The veteran complained of pain "in all range of motion." The veteran was not able to do repetitive movement because of pain. A February 2005 letter from J.C.T., M.D., FACEP, states that the veteran "has been 100% disabled since May 1, 1999 for severe degenerative arthritis of the spine with lumbar radiculopathy "according to a decision of the U.S. Social Security Administration." Extensive VA treatment records up to 2007 show continued complaints of back pain. The veteran's disability is currently rated as 40 percent disabling from September 26, 2003 to present and was rated as 20 percent disabling from May 1, 1999 to September 25, 2003. Turning first to the period of time from September 26, 2003 to present, the Board notes that the only disability ratings in excess of 40 percent available under either the old or new regulations require a showing of one of the following: 1) 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 the site of the diseased disc, with little intermittent relief (former Diagnostic Code 5293) 2) a showing of ankylosis of the entire thoracolumbar spine (current Diagnostic Codes 5237, 5242), or 3) incapacitating episodes (as defined by regulation) of at least 6 weeks in the last 12 months (Diagnostic Code 5243). The medical evidence for this time period shows no symptoms compatible with sciatic neuropathy, absent ankle jerk, or other neurological findings. In fact, EMG and nerve conduction tests of the veteran's lower extremities were normal and the veteran consistently denied bowel or bladder problems. Thus, the Board finds the medical evidence for this time period does not demonstrate any significant neurological abnormalities. The medical evidence does show that the veteran has demonstrated pain and muscle spasms, but the rating criteria require "persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm. Pain and muscle spasms alone, without accompanying sciatic neuropathy or other neurological findings, are not enough to warrant a 60 percent disability rating under former Diagnostic Code 5293 for intervertebral disc syndrome. Thus, a 60 percent disability rating would not be warranted under former Diagnostic Code 5293. Additionally, none of the extensive medical evidence of record shows any ankylosis of the veteran's thoracolumbar spine, much less ankylosis of the entire thoracolumbar spine. As such, a 60 percent disability rating is also not warranted under the current Diagnostic Codes 5237 and/or 5242. Finally, although the veteran complained of severe pain which caused him to take to his bed, the record shows no physician-prescribed bedrest (as required under the regulations), much less at least 6 weeks of physician-prescribed bedrest to warrant a 60 percent disability rating under current Diagnostic Code 5243. In light of these findings, the Board finds that a disability rating in excess of 40 percent is not warranted for the veteran's lumbosacral spine disability for the time period from September 26, 2003 to present. Turning the time period from May 1, 1999 to September 25, 2003, the Board notes that with the exception of current Diagnostic Code 5293 for rating intervertebral disk syndrome, which went into effect on September 23, 2002, only the former rating criteria for spinal disabilities is applicable during this time period as the remaining revised regulations applicable to spinal disabilities did not go into effect until September 26, 2003. As noted above, the former rating criteria required one of the following in order to warrant a disability rating in excess of 20 percent: 1) under former Diagnostic Code 5292, severe limitation of motion of the lumbar spine, 2) under former Diagnostic Code 5293, severe disability from intervertebral disc syndrome, characterized by recurring attacks with intermittent relief, or 3) under Diagnostic Code 5295, severe lumbosacral strain, with listing of the whole spine to 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. The November 1999 VA examination report shows that even though the range of motion testing was done gently to prevent paraspinal tightness, the veteran could achieve forward flexion to 65 degrees, extension to 20 degrees, lateral bending to 25 degrees and rotation to 35 degrees. The May 2002 VA examination report shows that the veteran had pain and muscle spasms, but could achieve forward flexion of the spine to 50 degrees without pain, extension to 30 degrees with no evidence of pain, lateral flexion to 30 degrees on both sides and lateral rotation to 20 degrees with no pain. In light of these findings, the Board finds that the veteran's range of motion during this time period was not severely limited in order to warrant a disability rating in excess of 20 percent under former Diagnostic Code 5292. The November 1999 VA examination report shows that straight leg testing was negative to 90 degrees bilaterally and the lower extremities were normal neurologically. The May 2002 VA examination report also shows that straight leg raising test was negative and that deep tendon reflexes were present and normal in the lower extremities. As such, the Board finds no evidence of neurological symptoms which would rise to the level of a severe disability from intervertebral disc syndrome, characterized by recurring attacks with intermittent relief, in order to warrant a disability rating in excess of 20 percent under former Diagnostic Code 5293. The medical evidence of record for this time period does show loss of lateral motion with both osteo-arthritic changes and narrowing of joint space. Nevertheless, under former Diagnostic Code 5295, in order to warrant a disability rating in excess of 20 percent, there must be severe lumbosacral strain and listing of the whole spine to opposite side and positive Goldthwaite's sign and marked limitation of forward bending in the standing position and loss of lateral motion with either osteo-arthritic changes or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. As there is no evidence of severe lumbosacral strain, listing of the whole spine to the opposite side, positive Goldthwaite's sign, or abnormal mobility on forced motion, a disability rating in excess of 40 percent is not warranted under former Diagnostic Code 5295. Also, as noted above, as Diagnostic Code 5293 was revised in September 2002 (and changed to Diagnostic Code 5243), the revised version of the rating criteria are applicable to this time period. However, as noted previously, any disability rating under this revised Diagnostic Code requires evidence of physician-prescribed bedrest, and there is no competent medical evidence of record showing that the veteran has ever been prescribed bedrest by a physician. As such, a disability rating in excess of 20 percent would also not be warranted for the veteran's lumbosacral spine disability under this Diagnostic Code. In sum, when considering the medical record and all applicable Diagnostic Codes, the preponderance of the evidence is against a finding that the veteran's lumbar spine disability more nearly approximates the criteria for a disability rating in excess of 20 percent for the time period from May 1, 1999 to September 25, 2003. Additionally, the preponderance of the evidence is against a finding that the veteran's lumbar spine disability more nearly approximates the criteria for a disability rating in excess of 40 percent for the time period from September 26, 2003 to present. The Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra and notes that the ranges of motion from the relevant VA examination reports took into consideration increased pain with motion and flare-ups. In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER A higher initial disability rating for mechanical low back pain syndrome with L5-S1 and L2-L4 discogenic disk disease and degenerative changes, rated as 50 percent disabling from September 26, 2003 and rated as 20 percent disabling from May 1, 1999 to September 25, 2003, is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs