Citation Nr: 0814062 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-19 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 10 percent for degenerative arthritis of the lumbosacral spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty service from October 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2007, the veteran appeared at a hearing at the RO before the undersigned. FINDING OF FACT The veteran's service-connected degenerative arthritis of the lumbar spine has been manifested by an abnormal gait during flare-ups, but has not been productive of any incapacitating episodes within the past 12 months during any period of the claim for increase. CONCLUSION OF LAW The criteria for a rating of 20 percent, but not more, for the veteran's lumbosacral spine disability have been met for the entire period of the increased rating claim. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5242, 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in July 2005, VA satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. 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 Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In July 2005, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing notice of what the evidence needed to demonstrate, of his and VA's respective duties in obtaining evidence, and of the types of relevant evidence that he should provide, or ask VA to obtain for the claim for increased rating for back disability. The Board notes that the veteran was not specifically informed that disabilities are rated on the basis of diagnostic codes, of the need to present evidence to meet the rating criteria and to establish an effective date of an award, or to submit medical or lay evidence demonstrating the effect a worsening of his back disability has on his employment and daily life. The Board finds that no prejudice resulted, however, because the veteran was told to submit any evidence, to include his own statement, "describe[ing] your symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by [his] disability," which would include any impact on the veteran's employment and daily life, and the veteran was provided notice of the appropriate rating criteria, which explicitly include effect on employment and daily life. The specific rating criteria for evaluating the back disability and how (based on what symptomatology) each rating percentage is assigned were provided to the veteran in the May 2006 Statement of the Case. Although the veteran was not sent an independent letter providing notice of this information, the records indicate that no prejudice resulted. The veteran was able to effectively participate extensively in the appeals process and the veteran had ample time to submit evidence. At his July 2007 hearing, the veteran demonstrated his knowledge of the requirements necessary for a higher rating and he also testified as to the effect his disability had on his employment. Thus, the evidence indicates that the veteran was fully aware of what was necessary to substantiate this claim for increased rating. The veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the veteran was last examined. 38 C.F.R. § 3.327(a) (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The July 2005 VA examination report is thorough and supported by the other clinical records. The examination in this case is adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326 (2007). Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating 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. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the spine is considered a major joint. See 38 C.F.R. § 4.45. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, DCs 5003 (degenerative arthritis) and 5010 (traumatic arthritis). DC 5010, traumatic arthritis, directs that the evaluation of arthritis be conducted under DC 5003, which states that 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. 38 C.F.R. § 4.71a, DC 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5010, Note 1. The Board has evaluated the veteran's back disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. The General Rating Formula for Diseases and 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 provides for evaluation of disabilities of the spine as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For 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 percent); For 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 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Diagnostic Code for intervertebral disc syndrome (DC 5243), permits evaluation under either 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 results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5237, 5242, 5243. When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. It has not been contended or shown in this case that the veteran has residuals of a fracture of the vertebra (DC 5235), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (5240), spinal fusion (DC 5241). Accordingly, the diagnostic codes pertaining to these disabilities are not applicable in the instant case. The Board now turns to the applicable criteria. The veteran's spine disability has been rated under DC 5242 for degenerative arthritis of the spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a higher rating of 20 percent is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In July 2004, the veteran had to hold onto his thighs at 60 degrees of forward flexion which was associated with paraspinal spasm bilaterally and extension was 10 degrees. A November 2004 VA MRI noted at L2-3 a bulging disk indenting the thecal sac, at L3-4 a small central disk herniation associated with an anular tear, and at L4-5 a shallow broad central disk herniation associated with anular tear indenting the thecal sac. On VA examination in July 2005, the veteran's thoracolumbar spine range of motion was forward flexion to 80 degrees with onset of pain at 75 degrees in the lower lumbar region, extension to 10 degrees with pain starting at 5 degrees, and lateral bending was 10 degrees bilaterally with complaints of discomfort. The examiner noted no gross deformities in the spine, posture was unremarkable, no gross muscular atrophy or spasm, and a normal gait. At the July 2007 Board personal hearing, the veteran testified that he experienced muscle spasms in his low back a couple of times a month which could last all night. He described his spasm as pinch-like ("like part of the nerve twisting"), stiffness of the lower back, and constant shaking of the right leg. The veteran further indicated that these muscle spasms affected the way he walked and resulted in a limp which favored mostly the left side of his body. He used the assistance of back brace and cane. The Board notes that while the veteran has been shown to have a normal gait on examination, the evidence demonstrates that during flare-ups he experiences muscle spasm or guarding severe enough to result in an abnormal gait. Thus, the criteria for a 20 percent rating have been met under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board also finds that a disability rating in excess of 20 percent is not warranted for any period of the increased rating claim. The evidence has not shown forward flexion of the thoracolumbar spine of 30 degrees or less for any period of the increased rating claim. Thus, the General Rating Formula for Diseases and Injuries of the Spine cannot serve as a basis for an increased rating in excess of 20 percent. Accordingly, the Board turns to the question of whether the veteran is entitled to rating in excess of 20 percent based upon the diagnostic criteria pertaining to intervertebral disc syndrome (IDS). IDS (pre-operatively or post- operatively) is to be evaluated 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 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an increased rating of 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. On VA examination in July 2005, the veteran reported an incapacitating episode in September 2004 for which he was out of work for one week. There is no evidence indicating that he experienced any other incapacitating episodes and certainly not to the extent as set forth in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the veteran is not entitled to a rating higher than 20 percent based upon incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As the veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether the veteran is entitled to a higher rating based on his orthopedic and neurological manifestations. Turning first to the orthopedic manifestations, in July 2004, the veteran demonstrated 60 degrees of forward flexion and 10 degrees of extension. On VA examination in July 2005, the veteran's thoracolumbar spine range of motion was forward flexion to 80 degrees with onset of pain at 75 degrees in the lower lumbar region, extension to 10 degrees with pain starting at 5 degrees, lateral bending was 10 degrees bilaterally with complaints of discomfort. The requirements for a higher rating of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine - forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine - are not shown by the evidence of record for any period of the increased rating claim. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2007). Under 38 C.F.R. § 4.124a (2007), disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2007). DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. DC 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. Treatment records do not demonstrate complaints of numbness or other neurological symptoms. A May 2004 VA treatment record noted that the veteran had a guarded gait with weight mostly balanced on his right leg. A June 2004 VA treatment record noted motor was 5/5 and sensory evaluation was grossly within normal limits. Another June 2004 record noted that the veteran denied weakness, numbness, loss of bowel, or bladder control. A July 2004 record noted straight leg raising when lying down was slightly positive on the left and negative on the right, and when sitting straight leg raisings were negative. Reflexes were present but decreased equally all around, there were no sensory changes, and there were no bladder or bowel control problems. Strength on the entire left leg was diminished to a four minus, stocking type. The July 2005 VA examination report noted straight leg raising from a seated position was negative and from a supine position was to 70 degrees with complaints of low back pain. The examiner noted that there were no radicular symptoms, Patrick test was negative, vasculature of both lower extremities was intact and symmetrical, and sensation was intact and symmetrical in both lower extremities. A July 2005 record noted sensory evaluation was intact to fine touch of the lower extremities and motor evaluation was 5/5 in all 4 extremities. In January 2007, the veteran complained of flare-ups of back pain with tingling up and down his right leg. Another record dated in January 2007 noted his complaints of pain in the lower back radiating to the left buttock. Also, in another January 2007 VA treatment record, the veteran's compliant of back pain radiating at times to his left hip area was noted. Strength was 5/5 in both lower extremity, sensory evaluation was grossly intact in both lower extremities, reflexes showed patellar was +2 equal bilaterally, and Achilles was +1 equal bilaterally. He also testified at his July 2007 hearing that he did not have tingling, numbness, or radiating pain. While the veteran has complained of sensory abnormalities related to his low back, the findings in the record do not support a conclusion that the veteran has radiculopathy, or that he has any other objective neurological symptoms related to his low back disability. Physical examination demonstrated no neurological impairment or sensory deficits. Additionally, no muscle atrophy was present and his muscle strength was normal in the lower extremities, bilaterally. The veteran is thus not entitled to an increased rating for his low back disability based upon consideration of any neurological residuals because there are not independently ratable neurological residuals shown or diagnosed by the treating and examining physicians. The Board has determined that the veteran is entitled to no more than a 20 percent disability rating under any of the spinal rating criteria applicable. Consideration has been given to the provisions of 38 C.F.R. §§ 4.40 and 4.45. Although the veteran has complained of flare-ups, these occur only after certain activities (the July 2005 examination report noted flare-ups with extended sitting and standing for periods of greater than 20 minutes, lifting, gardening, and covering the pool). The July 2005 VA examination report also noted that following repetitive range of motion, forward flexion decreased 5 to 10 degrees and extension decreased 5 degrees; however the remaining range of motion remained unchanged. There was some fatigability but there was no lack of endurance or gross incoordination observed, thus the requirements for a rating in excess of the current 20 percent evaluation are not met. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The question before the Board, then, is whether the veteran is entitled to a separate rating for his neurological manifestations. No objective neurological manifestations have been demonstrated. Accordingly, the Board finds that the veteran is not entitled to a separate rating for neurological manifestations. The weight of the credible evidence demonstrates that the orthopedic manifestations of the veteran's low back disability warrant no more than a 20 percent rating. The Board finds that the veteran is not entitled to a separate rating for any neurological component of his low back disability, as there is no objective evidence of any independently ratable neurological manifestations that would warrant a compensable rating. As the preponderance of the evidence is against the claim for an increased rating, the "benefit-of-the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Furthermore, the veteran has not been hospitalized for his disability. While he been missed work for a week and received worker's compensation in September 2004, a May 2004 record noted that the veteran was able to withstand 40 hours a week. In any case, the existing schedular rating is already based upon the average impairment of earning capacity, and is intended to be considered from the point of view of the veteran working or seeking work. A referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321 (b)(1). Based upon the guidance of the Court in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. ORDER A rating of 20 percent for degenerative arthritis of the lumbosacral spine is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ J. PARKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs