Citation Nr: 1007643	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  05-03 441A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for 
a scar as a residual of a "lumbar fusion" associated with 
degenerative arthritis of the lumbar segment of the spine, 
prior to April 1, 2006, on appeal from an initial grant of 
service connection. 

2.  Entitlement to a compensable evaluation for a scar as a 
residual of a "lumbar fusion" associated with degenerative 
arthritis of the lumbar segment of the spine, after March 31, 
2006, on appeal from an initial grant of service connection.

3.  Entitlement to an evaluation in excess of 10 percent for 
degenerative arthritis of the cervical segment of the spine, 
prior to June 11, 2004, on appeal from an initial grant of 
service connection.

4.  Entitlement to an evaluation in excess of 20 percent for 
degenerative arthritis of the cervical segment of the spine, 
after June 10, 2004, on appeal from an initial grant of 
service connection.

5.  Entitlement to an evaluation in excess of 10 percent for 
degenerative arthritis of the lumbar segment of the spine, 
after June 13, 2002, and prior to March 6, 2003, and from May 
1, 2003, to June 11, 2004, on appeal from an initial grant of 
service connection.

6.  Entitlement to an evaluation in excess of 20 percent for 
degenerative arthritis of the lumbar segment of the spine, 
after June 10, 2004, on appeal from an initial grant of 
service connection.


REPRESENTATION

Appellant represented by:	Oklahoma Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The Veteran had active military service from January 1966 to 
December 1975.

This case arises to the Board of Veterans' Appeals (Board) 
from June 2003 and later-issued rating decisions of the 
Department of Veterans Affairs (VA), Regional Office (RO), in 
Muskogee, Oklahoma.  

The RO granted service connection for disabilities involving 
a lumbar fusion surgery scar, degenerative arthritis of the 
cervical spine, and degenerative arthritis of the lower back, 
assigning 10 percent disability evaluations for each.  The 
Veteran appealed for higher ratings.  In July 2004, the RO 
assigned a 20 percent disability evaluation for the neck and 
a 20 percent evaluation for the lower back, both effective 
from June 11, 2004, representing a portion of the appeal 
period.  In August 2006, the RO reduced the scar rating to 
noncompensable effective from April 1, 2006.  The Veteran has 
appealed for higher initial ratings.

The Board remanded the case in July 2007 for additional 
examinations.


FINDINGS OF FACT

1.  Throughout the appeal period, a lumbar fusion surgery 
scar has been manifested by tenderness at the scar sight.  

2.  Throughout the appeal period, the cervical spine 
disability has been manifested by limitation of motion no 
worse than to 22 degrees of forward flexion, to 10 degrees of 
backward extension, to 10 degrees in right lateral bending, 
to 10 degrees in left lateral bending, and to 60 degrees of 
right and left rotation.  

3.  Minimal function impairment due to painful cervical spine 
motion is shown.  

4.  For the period prior to March 6, 2003, degenerative 
arthritis of the lumbar spine was manifested by range of 
motion to 90 degrees of flexion, to 30 degrees of extension, 
to 25 degrees of right lateral bending, to 30 degrees of left 
lateral bending, and to 35 degrees of right and left 
rotation.  

5.  For the period prior to March 6, 2003, minimal lumbar 
spine functional impairment due to pain on motion and pain on 
use is shown, but radiculopathy is not shown. 

6.  For the period beginning on May 1, 2003, degenerative 
arthritis of the lumbar spine has been manifested by pain-
free range of motion to no worse than 32 degrees of forward 
flexion, to 12 degrees of backward extension, to 10 degrees 
in right lateral bending, to 20 degrees in left lateral 
bending, and to 24 degrees of right rotation and to 20 
degrees of left rotation.  

7.  For the period beginning on May 1, 2003, radiculopathy is 
not shown. 


CONCLUSIONS OF LAW

1.  The criteria for a 10 percent rating, and no higher, for 
a lumbar fusion surgery scar are met for the entire appeal 
period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 
Supp.2009); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.118 
Diagnostic Code 7804 (2009). 

2.  The criteria for a 20 percent rating, and no higher, for 
the cervical spine are met for the entire appeal period.  
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 
Supp.2009); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 
4.45, 4.59, 4.71, Plate V; § 4.71a Diagnostic Code 5290 
(2003), Diagnostic Code 5237 (2009). 

3.  For the period prior to March 6, 2003, the criteria for a 
20 percent schedular rating for the lumbar spine are met.  
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 
Supp.2009); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 
4.45, 4.59, 4.71, Plate V; § 4.71a Diagnostic Codes 5292, 
5295 (2002). 

4.  For the period commencing on May 1, 2003, the criteria 
for a 20 percent schedular rating for the lumbar spine are 
met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 
Supp.2009); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 
4.45, 4.59, 4.71, Plate V; § 4.71a Diagnostic Codes 5292, 
5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2009). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA must notify and assist claimants in substantiating claims 
for benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 
5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2009).  Upon receipt of a complete or 
substantially complete application for benefits, VA must 
notify the claimant and his or her representative, if any, of 
any information and any medical or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  VA must also inform the claimant of any 
information and evidence not of record that VA will seek to 
provide and that the claimant is expected to provide.  This 
notice must be provided prior to an initial unfavorable 
decision.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In 
this case, VA first notified the claimant of what evidence is 
necessary in a September 2002 letter, prior to the 
unfavorable decision.

The claimant challenges the initial evaluation and/or 
effective date assigned following the grant of service 
connection.  In Dingess v. Nicholson, 19 Vet. App. 473 
(2006), the U.S. Court of Appeals for Veterans Claims (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. Id. 
at 490-91.  Because the notice that was provided before 
service connection was granted was legally sufficient, VA's 
duty to notify in this case has been satisfied.

VA also has a duty to assist the claimant in the development 
of the claims.  This duty includes assisting the claimant in 
obtaining service medical records and pertinent treatment 
records and providing an examination when necessary.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  All necessary 
development has been accomplished and adjudication may 
proceed without unfair prejudice to the claimant.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained VA 
outpatient treatment reports and private medical reports.  A 
hearing was provided.  The claimant was afforded several VA 
medical examinations.  Neither the claimant nor his 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for fair adjudication of the claims that has not 
been obtained.  Hence, no further notice or assistance to the 
claimant is required to fulfill VA's duty to assist in the 
development of the claims.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).

Disability Ratings

Disability ratings are based upon the average impairment of 
earning capacity as determined by a schedule for rating 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009).  
Diagnostic codes identify the various disabilities.  
38 C.F.R. Part 4.  The entire medical history is reviewed 
when making disability evaluations.  38 C.F.R. § 4.1; 
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  In 
determining the current level of impairment, the disability 
must be considered in the context of the whole recorded 
history, including service medical records.  38 C.F.R. § 4.2.  
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.  38 C.F.R. § 4.7.  

Evaluation of a disability includes consideration of the 
Veteran's ability to engage in ordinary activities, including 
employment, and the effect of symptoms on functional 
abilities.  A VA medical examination report must also include 
a "full description of the effects of disability upon the 
person's ordinary activity."  38 C.F.R. § 4.10; Martinak v 
Nicholson, 21 Vet. App. 447, 454 (2007).

Additionally, if a Veteran or the record reasonably raises 
the question of whether the Veteran is unemployable due to 
the disability for which an increased rating is sought, then 
a total rating based on individual unemployability (TDIU) as 
a result of that disability must be considered.  Rice v. 
Shinseki, 22 Vet. App. 447 (2009).

For disabilities evaluated on the basis of limitation of 
motion, VA is required to apply the provisions of 38 C.F.R. 
§§ 4.40, 4.45, pertaining to functional impairment.  The 
Court has instructed that in applying these regulations, VA 
should obtain examinations in which the examiner determined 
whether the disability was manifested by weakened movement, 
excess fatigability, or incoordination, including during 
flare-ups.  Such inquiry is not to be limited to muscles or 
nerves.  These determinations are, if feasible, to be 
expressed in terms of the degree of additional range-of-
motion loss due to any weakened movement, excess 
fatigability, or incoordination.  DeLuca v. Brown, 8 Vet. 
App. 202, 206 (1995).

In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the 
Court distinguished a claim for an increased rating from that 
of a claim arising from disagreement with the initial rating 
assigned after service connection was established.  In 
Hart v. Mansfield, 21 Vet. App. 505, 510 (2007), the Court 
held that 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.  

Initial Scar Rating 

The Veteran seeks an initial rating greater than 10 percent 
for a service-connected surgery scar associated with lumbar 
fusion.  The RO has assigned a staged rating with 10 percent 
effective prior to April 1, 2006, and zero percent on that 
date. 

In June 2003, the RO issued a rating decision granting 
service connection and a 10 percent rating for a residual 
scar related to lumbar arthritis.  An effective date of 
November 12, 2002, was assigned for the rating, based on the 
date of an examination report that mentions scar tenderness, 
but finds no other scar disorder.  The Veteran filed a notice 
of disagreement (NOD) with the 10 percent rating, but not 
with the effective date of that rating.  The claims file 
reflects that additional fusion surgery was performed on 
March 6, 2003, and a temporary total rating was assigned from 
that date through April 30, 2003.  

A March 31, 2006, VA scars examination report reflects a 12-
cm. by 0.1-cm. scar in the middle of the lower back due to 
lumbar fusion.  The examiner noted that there was no current 
symptom, but then noted that the condition had caused loss of 
work 21 times that year and caused disfigurement, adherence, 
and abnormal texture of less than 6 square inches.  There was 
no tenderness, ulceration, instability, tissue loss, 
inflammation, edema, keloid formation, hypopigmentation or 
hyperpigmentation.  The examiner felt that this represented 
no change from a prior diagnosis.  

In August 2006, the RO reduced the scar rating to zero 
percent under Diagnostic Code 7804, based on the March 31, 
2006, VA examination report, in spite of the fact that the 
March 2006 VA examiner specifically stated that there was no 
change from the prior diagnosis.  

In April 2007, the Veteran testified at a videoconference 
before the undersigned Veterans Law Judge that he has 
experienced pain on pressing the scar, numbness, and problems 
bending and stretching due to the scar and that this has not 
changed during the appeal period.  He further described a 
pulling sensation when doing lateral bending. 

A September 2009 VA scars compensation examination report 
notes a 4-inch vertically-oriented scar of the lower back.  
After describing the scar dimensions, the examiner then 
stated that scarring was not present.  The examiner found the 
scar to be non-tender. 

The medical reports are inconsistent with respect to scar 
symptoms during the appeal period.  Whereas a November 2002 
examiner confirmed the Veteran's complaint of scar 
tenderness, the March 2006 and September 2009 examiners 
stated that the scar was not tender.  Because the March 2006 
report notes that there had been no change in diagnosis from 
the previous examination, the accuracy of the March 2006 
assessment of no scar pain is called into question.  The 
September 2009 examination report must also be questioned 
because the examiner described the scar, but then stated that 
scarring was not present.  Because the March 2006 and 
September 2009 reports are unclear and conflict with the 
Veteran's competent, credible testimony that the scar remains 
tender, reasonable doubt surrounds the scar pain issue.  
Moreover, because the March 2006 examiner noted that the scar 
had caused significant loss of work as well as disfigurement, 
adherence, and abnormal texture, reasonable doubt is raised 
concerning the propriety of a noncompensable rating.  
According to 38 U.S.C.A. § 5107, reasonable doubt is resolved 
in the Veteran's favor.  

38 C.F.R. § 4.2 contains guidance concerning variation in 
examination reports during the appeal period.  It states that 
different examiners will not describe the same disability in 
the same language.  It is the responsibility of the rating 
specialist to interpret 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 present.  Each 
disability must be considered from the point of view of the 
veteran seeking work.  If a diagnosis is not supported by the 
findings on the examination report or if the report does not 
contain sufficient detail, it is incumbent upon the rating 
board to return the report as inadequate for evaluation 
purposes.  38 C.F.R. § 4.2 (2009).  Bierman v. Brown, 6 Vet. 
App. 125, 129 (1994).

Reconciling the various VA compensation examination reports 
into a consistent picture so that the current rating may 
accurately reflect the elements of disability present 
throughout the appeal period, it appears that the scar is 
tender, a fact to which the Veteran competently testified in 
April 2007.  

Under Diagnostic Code 7804, a superficial scar that is 
painful on examination warrants a 10 percent rating.  
38 C.F.R. § 4.118, Diagnostic Code 7804 (2009).  Because the 
scar has been tender throughout the appeal period, the 
criteria of a 10 percent rating, and no more, are more nearly 
approximated.  

After considering all the evidence of record, including the 
testimony, the Board finds that the evidence is at least in 
relative equipoise.  The benefit of the doubt doctrine will 
therefore be applied.  See 38 U.S.C.A. § 5107 (West 2002); 
Gilbert, supra.  A 10 percent rating for the scar will 
therefore be granted for the period beginning on April 1, 
2006. 

However, the preponderance of the evidence is against the 
claim for a scar rating higher than 10 percent for any 
portion of the appeal period.  Because the preponderance of 
the evidence is against a schedular rating higher than 10 
percent, the benefit of the doubt doctrine is not for 
application.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 
supra.  The claim for a schedular disability rating greater 
than 10 percent for a lumbar surgery scar is therefore denied 
for the entire appeal period.  

The evidence does not contain 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 for scars is 
therefore unnecessary.  Hart, supra.  

Initial Cervical Spine Rating

Degenerative arthritis of the cervical spine has been rated 
10 percent disabling prior to June 11, 2004, and 20 percent 
disabling on that date.  The appealed June 2003 rating 
decision assigned a 10 percent rating effective from June 14, 
2002, under Diagnostic Code 5290.  More recently the 
disability was recoded under Diagnostic Code 5237.

Limitation of motion of the cervical spine warrants a 10 
percent rating if slight, a 20 percent rating if moderate, 
and a maximum of 30 percent where severe.  38 C.F.R. § 4.71a, 
Diagnostic Code 5290 (2003). 

Various examination reports within the appeal period reflect 
differing cervical spine ranges of motion, but at no time 
have cervical spine ranges of motion been worse than to 22 
degrees of forward flexion, to 10 degrees of backward 
extension, to 10 degrees in right lateral bending, to 10 
degrees in left lateral bending, and to 60 degrees of right 
and left rotation.  Backward extension and lateral bending 
limited to 10 degrees, such as was shown in September 2009, 
reflect moderate limitation of motion and more nearly 
approximate the criteria for a 20 degree rating.  Thus, the 
20 percent rating assigned by the RO appears to be the 
correct rating.   

According to the Court in DeLuca, supra, the Board must 
consider a higher schedular rating if the disability is not 
already rated at the highest offered schedular rating for 
limitation of motion.  The examination reports show no worse 
than moderate limitation of motion of the cervical spine and 
do not show sufficient additional functional impairment to 
warrant the next higher rating under the prior rating 
schedule.  

The rating criteria for the spine was significantly changed 
effective on September 26, 2003.  If a rating higher than 20 
percent is warranted under the revised rating schedule, then 
the effective date of the higher rating can be no earlier 
than the date of issue of the revised regulation.  
38 U.S.C.A. § 5110 (g) (where compensation ... is awarded or 
increased pursuant to any act or administrative issue, the 
effective date of such award or increase shall be fixed in 
accordance with the facts found but shall not be earlier than 
the effective date of the act or administrative issue.  In no 
event shall such award or increase be retroactive for more 
than one year from the date of application therefor or the 
date of administrative determination of entitlement, 
whichever is earlier); McCay v. Brown, 9 Vet. App 183 (1996); 
aff'd at 106 F.3d 1577 (Fed. Cir. 1997); see also VAOPGCPREC 
3-2000.

38 C.F.R. § 3.114 states the above in similar language.  
Where compensation is awarded or increased pursuant to any 
act or administrative issue, the effective date of such award 
or increase shall be fixed in accordance with the facts found 
but shall not be earlier than the effective date of the act 
or administrative issue.  If the claim is received within one 
year from the effective date of the issue, benefits may be 
authorized from the effective date.  38 C.F.R. § 3.114 (a) 
(1) (2009). 

Under the revision that became effective on September 26, 
2003, the Diagnostic Code numbers changed.  Spine 
disabilities are rated under the General Rating Formula for 
Diseases and Injuries of the Spine set forth as follows: 

 5235 Vertebral fracture or dislocation
 5236 Sacroiliac injury and weakness
 5237 Lumbosacral or cervical strain
 5238 Spinal stenosis
 5239 Spondylolisthesis or segmental instability
 5240 Ankylosing spondylitis
 5241 Spinal fusion
 5242 Degenerative arthritis of the spine (see also 
Diagnostic Code 5003)
 5243 Intervertebral disc syndrome

Under this revision, the criteria for rating intervertebral 
disc syndrome based on duration of incapacitating episodes 
over the past 12 months remains the same.  Intervertebral 
disc syndrome is not shown in this case.  Also unchanged is 
the procedure for combining separate evaluations of the 
chronic orthopedic and neurologic manifestations; however, 
the following new rating criteria were added:

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 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 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.

As discussed above, painful limitation of motion of the 
cervical spine warrants a 20 percent schedular rating under 
Diagnostic Code 5290.  Ratings higher than 20 percent are 
offered under the revision, but only where forward flexion of 
the cervical spine 15 degrees or less; or, ankylosis of the 
spine is shown.  The medical evidence reflects that forward 
flexion has never been worse than 22 degrees.  Because 
neither forward flexion to 15 degrees or less nor ankylosis 
is shown, a higher rating higher than 20 percent is not 
warranted under the September 26, 2003, rating criteria 
revision.

The evidence does not contain factual findings that 
demonstrate distinct time periods in which the cervical spine 
disability exhibited diverse symptoms meeting the criteria 
for different ratings during the course of the appeal.  The 
assignment of staged ratings for the cervical spine is 
therefore unnecessary.  Hart, supra.  

After considering all the evidence of record, including the 
testimony, the Board finds that the evidence favors a 20 
percent rating for limitation of motion of the cervical spine 
the entire appeal period. 

Initial Lumbar Spine Rating

Degenerative arthritis of the lumbar spine has been rated 10 
percent disabling prior to March 6, 2003, 100 percent 
disabling on that date, 10 percent from May 1, 2003, and 20 
percent from Jun 11, 2004.  Diagnostic Code 5295 has been 
assigned throughout the appeal period.  Because a temporary 
total rating (100 percent) has been assigned from March 6 
through April 30, 2003, that period need not be considered. 

Lumbosacral strain, with slight, subjective symptoms only, is 
rated zero percent disabling.  With characteristic pain on 
motion, the rating is 10 percent.  With muscle spasm on 
extreme forward bending, and loss of lateral spine motion, 
unilateral, in standing position, the rating is 20 percent.  
A 40 percent rating is warranted for severe lumbosacral 
strain manifested by listing of the whole spine to the 
opposite side, positive Goldthwaite's sign, marked limitation 
in forward bending in standing position, loss of lateral 
motion with osteoarthritic changes, or some of the above with 
abnormal mobility on forced motion.  38 C.F.R. § 4.71a, 
Diagnostic Code 5295 (2002).

Under Diagnostic Code 5292, evaluations from 10 to 40 percent 
are available for limitation of motion of the lumbar spine.  
Slight limitation of motion of the lumbar spine warrants a 10 
percent evaluation.  Moderate limitation of motion of the 
lumbar spine warrants a 20 percent evaluation.  A 40 percent 
evaluation requires severe limitation of motion.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5292 (2002).  VA has not further 
defined slight, moderate, and severe, for purposes of rating 
the spine.  

For the period prior to March 6, 2003, the lumbar spine range 
of motion was to 90 degrees of flexion, to 30 degrees of 
extension, to 25 degrees of right lateral bending, 30 degrees 
of left lateral bending, and to 35 degrees of right and left 
rotation, as noted in the November 2002 VA examination 
report.  There was evidence of pain and muscle spasm on 
motion, but no radiculopathy.  With muscle spasm on extreme 
forward bending, and loss of lateral spine motion, 
unilateral, in standing position, the rating is 20 percent.

Comparing these findings with the rating criteria, they 
warrant a 20 percent rating, and no higher, under Diagnostic 
Code 5295.  Any additional function impairment due to painful 
use does not more nearly approximate the criteria of the next 
higher rating under Diagnostic Code 5292 or 5295.  DeLuca, 
supra.  

Turning the later rating period for the lumbar spine, for the 
period beginning on May 1, 2003, the lumbar spine ranges of 
motion have varied, according to VA examination reports of 
June 2004, March 2006, and September 2009.  Ranges of motion 
have not been shown to be worse than to 32 degrees of forward 
flexion, to 12 degrees of backward extension, to 10 degrees 
in right lateral bending, to 20 degrees in left lateral 
bending, and to 24 degrees of right rotation and to 20 
degrees of left rotation.  These ranges represent the ranges 
of pain-free movement.  Forward flexion to 32 degrees and 12 
degrees of backward extension both represent moderate 
limitation of motion and more nearly approximate the criteria 
for a 20 percent rating.  Thus, a 20 percent rating under 
Diagnostic Code 5292 must be considered.  

Because a 40 percent schedular rating is assignable under 
Diagnostic Code 5295, those rating provisions set must be 
discussed.  As noted above, Diagnostic Code 5295 offers a 40 
percent rating where there is evidence of severe lumbosacral 
strain manifested by listing of the whole spine to the 
opposite side, positive Goldthwaite's sign, marked limitation 
in forward bending in standing position, loss of lateral 
motion with osteoarthritic changes, or some of the above with 
abnormal mobility on forced motion.  Because the evidence 
does not show listing of the whole spine to the opposite 
side, positive Goldthwaite's sign, marked limitation in 
forward bending in standing position, loss of lateral motion 
with osteoarthritic changes, or some of the above with 
abnormal mobility on forced motion, the criteria for a rating 
greater than 20 percent are not more nearly approximated. 

As discussed under the cervical spine rating above, the 
rating criteria for the spine was significantly changed 
effective from September 26, 2003.  Because the revised 
rating criteria offer ratings greater than 20 percent, they 
must also be considered.  If a rating higher than 20 percent 
is warranted under the revised rating schedule, then the 
effective date of the higher rating can be no earlier than 
the date of issue of the revised regulation.  38 U.S.C.A. § 
5110 (g), supra.   

Ratings higher than 20 percent are offered for the lumbar 
spine where ankylosis is shown or where forward flexion of 
the lumbar spine is 30 degrees or less.  Because ankylosis of 
the lumbar spine is not shown and because forward flexion has 
not been worse than to 32 degrees during this portion of the 
appeal period, a rating higher than 20 percent cannot be 
assigned under the September 26, 2003, rating criteria 
revision.

Prior to and after the temporary total rating assignment for 
the lumbar spine during the appeal period, the lumbar spine 
disability more nearly approximated moderate limitation of 
motion and did not exhibit diverse symptoms meeting the 
criteria for different ratings.  The assignment of staged 
ratings is therefore unnecessary.  Hart, supra.  

After considering all the evidence of record, including the 
testimony, the Board finds that the evidence favors the 
claim.  A 20 percent rating will be granted for the lumbar 
spine disability under Diagnostic Code 5292 for the period 
prior to March 6, 2003, and a 20 percent rating will also be 
assigned for the period commencing on May 1, 2003.  



Extraschedular Consideration

The provisions of 38 C.F.R. § 3.321(b) provide that where the 
disability picture is so exceptional or unusual that the 
normal provisions of the rating schedule would not adequately 
compensate the Veteran for his service-connected disability, 
an extra-schedular evaluation will be assigned.  Where the 
Veteran has alleged or asserted that the schedular rating is 
inadequate or where the evidence shows exceptional or unusual 
circumstances, the Board must specifically adjudicate the 
issue of whether an extraschedular rating is appropriate, and 
if there is enough such evidence, the Board must direct that 
the matter be referred to the VA Central Office for 
consideration.  If the matter is not referred, the Board must 
provide adequate reasons and bases for its decision to not so 
refer it.  Colayong v. West 12 Vet. App. 524, 536 (1999); 
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  

Additionally, if the claimant or the record reasonably raises 
the question of whether the Veteran is unemployable due to 
the disability for which an increased rating is sought, then 
part and parcel to that claim for an increased rating is 
whether a total rating based on individual unemployability 
(TDIU) as a result of that disability is warranted.  Rice v. 
Shinseki, 22 Vet. App. 447 (2009).

In this case, the Veteran has not filed a claim for TDIU and 
he continues to work.  Therefore, the issue of TDUI is not 
raised by the record.  His service-connected disabilities 
have not been shown, or alleged, to cause such difficulties 
as marked interference with employment or to warrant frequent 
periods of hospitalization or to otherwise render impractical 
the application of the regular schedular standards.  In the 
absence of evidence of such factors, the Board is not 
required to remand this matter to the RO for the procedural 
actions outlined in 38 C.F.R. § 3.321(b) (1).  See Bagwell v. 
Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. 
App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227.  See also 
VAOPGCPREC. 6-96. 





ORDER

For the period beginning on April 1, 2006, a 10 percent 
rating for a lumbar fusion scar is granted, subject to the 
laws and regulations governing payment of monetary benefits. 

A rating higher than 10 percent for a lumbar fusion scar is 
denied for the entire appeal period. 

For the entire appeal period, a 20 percent rating for 
degenerative arthritis of the cervical segment of the spine 
is granted, subject to the laws and regulations governing 
payment of monetary benefits. 

For the period prior to March 6, 2003, a 20 percent rating 
for degenerative arthritis of the lumbar spine is granted, 
subject to the laws and regulations governing payment of 
monetary benefits. 

For the period commencing May 1, 2003, a 20 percent rating 
for degenerative arthritis of the lumbar spine is granted, 
subject to the laws and regulations governing payment of 
monetary benefits. 

A rating higher than 20 percent for degenerative arthritis of 
the lumbar spine is denied for the entire appeal period. 



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs