Citation Nr: 1300240	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  08-09 770A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts



THE ISSUES

1.  Entitlement to a rating in excess of 10 percent prior to September 15, 2011, for a chronic low back strain.

2.  Entitlement to a rating in excess of 20 percent on or after September 15, 2011, for a chronic low back strain.



REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1971 to April 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  In that rating decision, the RO continued a 10 percent evaluation for the Veteran's service-connected chronic low back strain. 

In August 2012, the Board remanded the Veteran's claim for additional development of the record. 

In an October 2012 rating decision, the Appeals Management Center (AMC) granted an increased rating for chronic low back strain from 10 percent to 20 percent effective from September 15, 2011.  However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993).  Thus, the issue remains on appeal to the Board. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In August 2011, the Board also observed that the issue of service connection for hepatitis had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Veteran was denied service connection for residuals of hepatitis in a July 1972 rating decision, and he did not file an appeal with regard to the claim.  In November 2006, the Veteran later stated that he was concerned about his hepatitis, which was noted at the time of his discharge.  As this matter remains unadjudicated, the Board again refers the issue of whether new and material evidence had been submitted to reopen a claim for service connection for hepatitis to the AOJ for appropriate action. 


FINDINGS OF FACT

1.  Prior to September 15, 2011, the Veteran's chronic low back strain was manifested by limitation of forward flexion to 50 degrees. 

2.  During the pendency of the appeal, the Veteran's chronic low back strain has not been productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.

3.  The Veteran is already service-connected for sciatica of the left lower extremity, and he does not have any other separate neurological disability distinct from his chronic low back strain and sciatica.  


CONCLUSIONS OF LAW

1.  Resolving all doubt in favor of the Veteran, the criteria for a 20 percent disability evaluation for a chronic low back strain prior to September 15, 2011, have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5239 (2012). 

2.  The criteria for evaluation in excess of 20 percent for a chronic low back strain have not been met at any point during the appeal period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5239 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b)  require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  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.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the RO did provide the appellant with notice in June 2006, prior to the initial decision on the claim in September 2006.  Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. 

Moreover, the requirements with respect to the content of the notice were met in this case.   In this regard, the June 2006 letter informed the Veteran of the evidence and information needed to substantiate his claim and of the division of responsibilities in obtaining such evidence.  The letter also explained how disability ratings and effective dates are determined.

In addition, the duty to assist the Veteran has been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  The Veteran has not identified any outstanding evidence that is pertinent to the issues being decided herein. 

As noted above, the Board remanded the case for further development in August 2011, to include obtaining updated VA treatment records and to afford the Veteran a more recent VA examination.  Following the remand, the Appeals Management Center (AMC) requested updated VA treatment records; however, the AMC ultimately made a formal finding of unavailability with respect to the Veteran's treatment records from the VA Medical Center in Bedford, Massachusetts dated from 1990 to present.  The record indicates that the AMC made multiple attempts to obtain these records.  Under these circumstances, the Board finds that any additional attempts to obtain these records would be futile.  38 U.S.C.A. § 5103A(b)(3).  VA also notified the Veteran about the unavailable VA treatment records in a letter dated January 2012.  The record reveals that all other VA treatment records were obtained and associated with the claims folder.  In addition, the Veteran was afforded a VA examination following the remand.  Thus, there has been substantial compliance with the prior remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Regarding VA examinations, the Veteran was provided one in both June 2006 and September 2011.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully address the rating criteria that are relevant to rating the disability in this case. 

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a).  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. VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 


Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole- recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by 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. 38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 

In this case, the Veteran's chronic low back strain is currently assigned a 10 percent disability evaluation prior to September 15, 2011, and a 20 percent disability evaluation effective from September 15, 2011, pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5239.   Diagnostic Code 5239 provides that spondylosisthesis or segmental instability should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 

Under 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, a 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, 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.  A 40 percent evaluation is contemplated when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. 

Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 

Further, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The normal combined range of motion range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 230 degrees.  The normal ranges of motions 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. 

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 

An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id.  Note (2). 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an increased evaluation for his chronic low back strain prior to September 15, 2011.  The evidence of record shows that the Veteran warrants a 20 percent disability evaluation prior to that date.  Specifically, the June 2006 VA examination showed him to have only 50 degrees of forward flexion, which meets the rating criteria under the General Rating Formula for Diseases and Injuries of the Spine, as it provides that the a 20 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  Thus, taking into account the provisions of 38 C.F.R. §§ 4.40 , 4.45, 4.59 and the holdings of DeLuca, supra, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that a 20 percent evaluation is warranted prior to September 15, 2011.

The Board has also considered whether a disability evaluation in excess of 20 percent is warranted for the Veteran's chronic low back strain at any point during the pendency of the appeal.  However, the Veteran has not been shown to meet the criteria for a higher rating.  The evidence does reveal forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  In this regard, the June 2006 VA examination found the Veteran to have forward flexion to 50 degrees, extension to 15/30 degrees, lateral rotation to the left and right to 20.30 degrees, and lateral rotation to the left and right to 10/30 degrees.  The September 2011 VA examiner also indicated that the Veteran had 45 degrees of forward flexion, 20 degrees of extension, 20 degrees of right lateral flexion, 15 degrees of left lateral flexion, and 30 degrees or greater of right and left lateral rotation.

The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81   (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).  Based on the aforementioned range of motion findings, the Veteran's spine does not appear to be fixed or immobile.   

Moreover, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.  The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least four weeks.  The Veteran did tell the June 2006 VA examiner that he was sometimes bedridden during flare-ups for up to three days at a time, but he did not provide the frequency of such flare-ups or the total duration for the past 12 months.  Nor is there any indication that he was prescribed such bed rest by a physician.  In addition, the September 2011 VA examiner specifically indicated that the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine and that there had not been any incapacitating episodes during the previous year.  Therefore an evaluation in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

After reviewing the record, the Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffered from a separate neurological disability distinct from his chronic low back strain.  The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria.  Notably, the Veteran is already separately service-connected for sciatica of the left lower extremity.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).   

Moreover, the June 2006 VA examiner noted that the Veteran did not have numbness, bowel or bladder complaints, or erectile dysfunction.  The September 2011 VA examination also revealed normal reflex and sensory testing for the right lower extremity, and he did not have radiculopathy symptoms or nerve root involvement on the right side.  The latter examiner further indicated that the Veteran did not have any other neurologic abnormalities or findings related to his back, such as bowel or bladder problems or pathologic reflexes.  Therefore, the Board concludes that the Veteran did not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman, 6 Vet. App. at 129-132. 

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions.  However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent disability evaluation.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  In fact, the June 2006 VA examiner noted that there was no change in the range of motion or degree of discomfort following repetitive motion testing.  The September 2011 VA examiner also indicated that there was no additional limitation in range of motion following repetitive-use testing  Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's chronic low back strain.  

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's chronic low back strain is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, there are higher ratings available under criteria, but the Veteran's disability is not productive of such manifestations. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected chronic low back strain under the provisions of 38 C.F.R. § 3.321(b)(1)  have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

ORDER

Subject to the provision governing the award of monetary benefits, a 20 percent disability evaluation for a chronic low back strain prior to September 15, 2011, is granted.  
An evaluation in excess of 20 percent for a chronic low back strain is denied.  



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs