Citation Nr: 1318703 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-33 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 40 percent for degenerative disc and joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from March 1948 to April 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for degenerative disc and joint disease of the lumbar spine, effective May 8, 2003. In March 2009, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. In February 2010, the RO issued a rating decision awarding a 40 percent rating for the service-connected degenerative disc and joint disease of the lumbar spine. As this is not the highest possible rating for this disability, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2012. A transcript of those proceedings has been associated with the claims file. This claim was previously before the Board in November 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Degenerative disc and joint disease of the lumbar spine is characterized by pain and limitation of motion without objective evidence of unfavorable ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for an initial rating higher than 40 percent for degenerative disc and joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5292, 5293 (effective prior to September 26, 2003), and Diagnostic Codes 5242, 5243 (2012) (effective on September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in June 2003, June 2007, and September 2010 the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The June 2007 and September 2010 letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in April 2013. This appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which 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. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private treatment records, and hearing testimony. The Board also notes that actions requested in the prior remand have been undertaken. Updated VA treatment records have been obtained and private treatment records identified by the Veteran were requested. Following the April 2013 supplemental statement of the case, the Veteran responded that there was no additional evidence to submit and requested that the case be returned to the Board immediately. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for a higher rating, and the Veteran volunteered his treatment history and symptoms. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran provided relevant testimony on those points. Thus, the Veteran is not prejudiced by a decision being rendered at this time, and no further action pursuant to Bryant is necessary. Analysis The Veteran is seeking an initial rating greater than 40 percent for degenerative disc and joint disease of the lumbar spine. It is noted that he has been assigned separate evaluations for radiculopathy of the lower extremities associated with degenerative disc and joint disease of the lumbar spine by an August 2011 rating decision. That decision also assigned a total disability rating based on unemployability. The Veteran has not appealed that rating decision, and those issues are not on appeal. Moreover, as he is in receipt of a separate rating for radiculopathy, symptomatology associated with that disability cannot be considered in assigning an evaluation for his lumbar spine disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). However, the Veteran is already assigned the maximum evaluation of 40 percent based on limitation of motion; thus, a higher rating for limitation of motion based on pain and functional impairment cannot be awarded. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (implicitly holding that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). During the period of the appeal, the criteria for disabilities of the spine were revised, effective September 26, 2003. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3-00. Diagnostic Code 5289 (in effect prior to September 26, 2003) provided ratings for ankylosis of the lumbar spine. Favorable ankylosis of the lumbar spine was to be rated 40 percent disabling. Unfavorable ankylosis of the lumbar spine was to be rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5292 (in effect prior to September 26, 2003) provided ratings based on limitation of motion of the lumbar spine. In pertinent part, severe limitation of motion of the lumbar spine was to be rated 40 percent disabling. 38 C.F.R. § 4.71a. This is the maximum evaluation assignable for limitation of motion. Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided that intervertebral disc syndrome (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided a 40 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Notes following Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided guidance in rating intervertebral disc syndrome. Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provided that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a. Effective September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides that a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Effective September 26, 2003, Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Reviewing the evidence of record, the Veteran wrote in a July 2003 statement that his back was in constant pain. March 2003 treatment records from Capital Regional Medical Center state that the Veteran had low back syndrome. An August 2003 MRI of the lumbar spine showed bulging discs at multiple levels and desiccation of the intervertebral disc throughout the lumbar spine. Private pain management treatment shows that from April 2003 to July 2004 the Veteran complained of back pain for which he had injections. The Veteran had a VA examination for his spine in October 2008 at which he reported being in chronic pain that had gotten progressively worse since onset. The pain was noted to be moderate, sharp, and constant. A motor examination was normal. Sensory examination of the upper extremities was normal and sensory examination of the lower extremities was abnormal. There was no thoracolumbar spine ankylosis. Range of motion of the thoracolumbar spine was flexion 0 to 65 degrees with pain at 65 degrees. Extension was to 10 degrees with pain at 13 degrees. Lateral flexion to the right was to 25 degrees with pain beginning at 23 degrees, and lateral flexion to the left was to 10 degrees with pain at 10 degrees. Thoracolumbar lateral rotation to the right was to 22 degrees with pain at 22 degrees and lateral rotation to the left was to 20 degrees with pain at 20 degrees. There was pain after repetitive use and no reduction in ranges of motion after three repetitions due to pain, fatigue, weakness, lack of endurance, or incoordination. X-rays showed arthritic changes in the lower thoracic spine and throughout the lumbar spine. There was disc space narrowing that was most pronounced at the mid and lower levels of the lumbar spine. The examiner felt that the Veteran was prevented from participating in exercise and sports. There was a severe effect on performing chores, a moderate effect on shopping and recreation, a mild effect on travelling, bathing and dressing, and no effect on toileting and grooming. A December 2008 CT Scan of the lumbar spine from VA treatment showed moderate to marked degenerative changes that were most prominent at L5-S1 with disc space narrowing and vacuum disc phenomenon. There was no significant posterior disc bulges at any levels of the lumbar spine. The Veteran had another VA examination in February 2010 at which he reported having to constantly use a walker and being unable to walk a city block. He experienced incapacitating flare-ups several times a week that lasted for a day. Flare-ups prevented all activities except for core activities of daily living. The Veteran took medication with a fair response. The pain ranged from aching to stabbing and was constant. The Veteran reported having incapacitating episodes twice a week that lasted for a day, and the examiner also noted that there were incapacitating episodes due to intervertebral disc syndrome. The Veteran used a walker and was unable to walk for more than a few yards. Spine curvature was normal except for lumbar flattening. On examination there was objective evidence of bilateral pain with motion, tenderness, and weakness. A motor examination showed reduced movement, a sensory examination showed impaired sensation to the lower extremities, and a reflex examination showed reduced and absent reflexes in the lower extremities. Range of motion of the thoracolumbar spine was flexion to 14 degrees, extension to 4 degrees, left lateral flexion to 10, left lateral rotation to 18 degrees, right lateral flexion to 14 degrees, and right lateral rotation to 20 degrees. There was objective evidence of pain on active motion and following repetitive motion. Three repetitions could not be tested because after the second left lumbar bend, the pain increased markedly and the Veteran had to stop. The diagnosis was degenerative disc disease and degenerative joint disease of the thoracolumbar spine. The examiner felt it prevented the Veteran from shopping, exercising, or playing sports. There was a severe effect on chores, recreation, traveling, and bathing, a moderate effect in dressing and toileting and a mild effect on feeding and grooming. At April 2010 VA physical therapy treatment the Veteran rated his pain as 6 out of 10 with pain medication and said it would be 9 to 10 out of 10 without medication. The pain increased with getting up and down, walking for five minutes, bending, physical work, and sitting for 30 to 45 minutes. It decreased with frequently changing positions and activities and with heat. He also took pain medication. At physical therapy treatment later in April 2010, the Veteran rated his pain as a 5 out of 10 with pain medication. The Veteran said that he was trying to walk as much as he could for exercise but that his feet and legs started to burn after short distances. He refused an assessment of the lower extremities because he said that leg motions were too painful on his back. At July 2010 to August 2010 private treatment the Veteran complained of chronic low back pain that was stabbing and that he rated as 7 to 8 out of 10. The Veteran had been doing aquatic exercises, and he limited exercise repetitions due to pain. He also walked 45 minutes to an hour for exercise and used a cane for long distances. The Veteran had a VA examination in June 2011 at which he said that he could not do physical therapy due to pain and that there had been further decrease in range of motion. There were severe flare-ups a couple of times a week without known precipitating factors. During flares he could not do anything and his mobility was significantly decreased. Time, rest and pain medications provided relief. The only abnormal spinal curvature was lumbar flattening. Muscle spasm, localized tenderness or guarding was not severe enough to be responsible for abnormal gait or spinal contour. Range of motion of the thoracolumbar spine was flexion to 10 degrees, extension to 5 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 10 degrees. The Veteran was unable to tolerate repeat range of motion due to pain and instability, and the examiner felt there was objective evidence of pain following repetitive motion. Reflexes were abnormal in the knees and ankles and sensory examination was abnormal in the lower extremities. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities. The effect on occupational activities was decreased concentration, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength in the lower extremities, and pain. The Veteran reported that his back had a moderate to severe effect on daily activities. He could not sit, stand, or lay in one position for more than a few minutes and could not lift, carry or reach. The Veteran also had decreased stamina, decreased concentration and increased fatigue. His leg weakness put him at risk of falling. July 2011 VA primary care treatment records indicate that the back pain was stable. At an August 2011 VA examination range of motion of the thoracolumbar spine was flexion to 10 degrees, extension to 5 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 10 degrees. The Veteran was again unable to tolerate repeat range of motion testing due to pain and instability. The Veteran testified at the June 2012 hearing that he cannot do any lifting or yard work. The medication helped some. July 2012 VA treatment records indicate that the Veteran continued to have low back pain. The record does not show that the Veteran has fractured vertebra or ankylosis of the spine. Therefore, he cannot qualify for increased evaluations under Diagnostic Code 5285 or 5289, in effect prior to September 26, 2003. Furthermore, evaluations in excess of 40 percent were not available under Diagnostic Codes 5292 and 5295. See 38 C.F.R. § 4.71a. Moreover, while the evidence does establish that the Veteran suffers from degenerative disc disease, a higher 60 percent evaluation is not warranted under Diagnostic Code 5293. Specifically, the record does not show that he had incapacitating episodes having a total duration of at least six weeks during the past 12 months as contemplated by the regulations because he did not require bed rest prescribed by a physician. Similarly, from September 26, 2003, the Veteran does not qualify for an evaluation in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine because the record shows that he does not have ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a. The Veteran also does not qualify for an evaluation in excess of 40 percent for intervertebral disc syndrome because the record does not show incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Although the February 2010 VA examiner noted that the Veteran reported having incapacitating episodes twice a week that lasted for a day, the record does not indicate that the Veteran was prescribed bed rest by a physician, as required for establishing an incapacitating episode for rating purposes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The private treatment records from July to August 2010 show that the Veteran was performing aquatic exercises and was walking for exercise. The treatment records do not show incapacitating episodes treated by bed rest prescribed by a physician, although they do indicate that the Veteran was in pain. While the June 2011 VA examination shows a decrease in range of motion and that there were frequent flare-ups, the examination report does not indicate bed rest prescribed by a physician. See id. The Board notes that the Veteran is currently in receipt of the maximum 40 percent evaluation for limitation of motion. Thus, additional functional impairment cannot support a higher rating and the Court's decision in DeLuca is not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (implicitly holding that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). Additionally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected degenerative disc and joint disease of the lumbar spine, as the Court indicated can be done in this type of case. Based upon the record, the Board finds that at no time during the claims period has the disability on appeal been more disabling than as currently rated. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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 Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for higher ratings for ankylosis or incapacitating episodes, which are not objectively shown by the record. Moreover, separate ratings have already been assigned for bilateral lower extremity radiculopathy, and he is in receipt of a total disability rating based on unemployability. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's lumbosacral strain, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial rating higher than 40 percent for degenerative disc and joint disease of the lumbar spine is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs