Citation Nr: 1318784 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-21 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased initial rating for a lumbar spine disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for a lumbar spine disability and assigned a 10 percent rating, effective June 1, 2005. The Veteran testified before the Board at a Central Office hearing in March 2010. A transcript of this hearing has been associated with the claims file. The Board remanded this claim for additional development in July 2010. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's lumbar spine disability has been manifested by pain, with full range of motion, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; while the Veteran has been separately compensated for associated neurological disability in the left lower extremity, there are no objective findings of any associated neurological disability in the right lower extremity, and there have been no incapacitating episodes in the past 12 months. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDING 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 a July 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The July 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, the 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 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). 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 and private medical records, VA examination reports, hearing testimony, and the Veteran's statements. The Veteran has been afforded a hearing before a Veterans Law Judge (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) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's increased rating claim. However, the representative asked questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. Additionally, the representative asked questions regarding the Veteran's treatment history. The VLJ questioned the Veteran on the trend of his symptoms since the last VA examination and suggested the identification and submission of additional medical evidence to assess the symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, 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, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining the Veteran's current VA medical records as well as any outstanding private medical records, and scheduling the Veteran for a current VA examination that included a complete neurological examination to determine whether he had any neurological deficits related to his lumbar spine disability. In response, the RO/AMC obtained all current VA medical records and outstanding private medical records. Furthermore, the RO/AMC scheduled the Veteran for a September 2010 VA examination for his lumbar spine disability as well as an August 2011 VA neurological examination. The August 2011 VA examiner determined that the Veteran had left lower extremity peripheral neuropathy that was related to his lumbar spine disability. Pursuant to this determination, in a February 2012 rating decision, the RO granted separate service connection for left lower extremity peripheral neuropathy as secondary to the Veteran's service-connected lumbar spine disability, and assigned a 10 percent rating, effective August 29, 2011. The Veteran has not filed a notice of disagreement with the rating assigned for his left lower extremity peripheral neuropathy. 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)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and testifying at a hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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). The Board has reviewed all the evidence in the Veteran's claims 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 appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to a higher disability rating for his lumbar spine disability. Such disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243, as 10 percent disabling. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5242 pertains to degenerative arthritis of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Diagnostic Code 5243 pertains to intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The General Rating Formula for Diseases and Injuries of the Spine provides that, 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 following ratings will apply. A 10 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. VA and private medical records dated from December 2006 to April 2009 show that the Veteran received intermittent treatment for low back pain that radiated slightly into the right buttocks but primarily into the left buttocks and down the left leg. The Veteran consistently denied having any bowel or bladder incontinence. A December 2006 VA treatment record indicated that the Veteran had low back pain with left sciatica. A February 2007 MRI revealed old sworl's node vs. old partial collapse of L3 anteriosuperiorly, almost 1st degree listhesis of L5 on S1 with some degenerative changes and a pseudodisc herniation to the left side, and nerve root encroachment. A July 2007 MRI showed that the Veteran had left paracentral disc herniation at L5-S1. In an April 2009 private medical report, the Veteran indicated that he had burning, intermittent low back pain that was greater in the left than the right. He reported occasional burning pain in both posterior thighs to the knees and occasional leg weakness. He stated that he experienced tingling and a "pins and needles" sensation in his left low back and legs. The Veteran was diagnosed with chronic low back pain, bilateral leg pain, disc herniation at L5-S1, compression of the L5 nerve root, and suspect discogenic pain. However, his neurological examination was normal. On VA general examination in August 2006, the Veteran complained of back stiffness and weakness. He reported having chronic low back pain which occurred intermittently about 4 times a week and lasted about 16 hours. He stated that his back pain had a squeezing, burning, and sharp quality and that it radiated down to the legs, knees, and feet. He indicated that at its worst, the pain was a 7/10 in severity. He denied any incapacitation but maintained that he sometimes had pain with prolonged standing, running, sitting long periods of time, and bending over. Examination revealed normal posture, gait, spinal curvature, and spinal head position. The spine was symmetrical in appearance and motion. The Veteran was not using any assistive devices. There was no evidence of muscle spasm, tenderness, radiation of pain on movement, or ankylosis. Straight leg raise was normal bilaterally. Range of motion testing was normal, but there was pain induced. Upon repetitive use, there was no pain, fatigue, weakness, lack of endurance, or incoordination. The Veteran's sciatic nerve was normal, and there was no radiculopathy or intervertebral disc syndrome. Neurological examination revealed normal cranial nerves, power tone and sensory, and position of vibratory sense. Babinski was absent. An x-ray of the lumbar spine showed degenerative changes compatible with osteoarthritis. The Veteran was diagnosed with osteoarthritis involving L2 through S1 with disc space narrowing and osteophyte formation, and old compression fracture involving L3 deformity related to the old fracture of the anterior superior endplate of L3. The Veteran testified before the Board at a Central Office hearing in March 2010. Testimony revealed, in pertinent part, that the Veteran experienced a burning sensation in the left part of his back around the waist area and up in the mid-back area. The Veteran testified that due to back immobility around the winter season, he had taken a few days off from work a year. He reported that he had radiating back pain, tingling, and numbness that would sometimes go down into his feet. He denied any bowel or bladder problems or the use of any supportive devices. At a September 2010 VA spine examination, the Veteran reported having severe weekly flare-ups of his low back condition which would last for 1 to 2 days. He stated that precipitating factors included running, sitting in one position for over 2 hours, and standing for over 1 hour. He indicated that he had at least 50 percent additional limitation of motion or other functional impairment during flare-ups. He also maintained that he had fatigue, decreased motion, stiffness, weakness, spasm, and low back pain. He complained that the sharp and severe back pain was brought on with weight bearing activities, running, standing, and sitting in one position for too long. He reported that the pain occurred anywhere from 1 to 6 days a week and lasted 1 to 2 days. He stated that he also had sharp radiating pain that went down behind the left leg thigh and stopped in the posterior left calf. Examination revealed normal posture, spinal head posture, spinal symmetry, and spinal curvature. The Veteran used no devices or aids. There was no evidence of incapacitating episodes of spine disease, spasm, atrophy, guarding, tenderness, or weakness. However, there was pain with motion. The examiner noted that there was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or spinal contour. Range of motion testing showed 90 degrees flexion, 30 degrees extension, 30 degrees lateral flexion bilaterally, and 80 degrees lateral rotation bilaterally. There was no objective evidence of pain on range of motion. Upon repetitive motion, there was objective evidence of pain, but there were no additional limitations. Knee and ankle jerk were 2+ bilaterally, and plantar flexion was normal. Vibration, position sense, pain or pinprick, and light touch were normal. There was no dysesthesias. Motor examination and muscle tone were normal, and there was no muscle atrophy. Lasegue's sign was negative. The Veteran was diagnosed with intervertebral disc syndrome and degenerative joint disease of the lumbar spine. The examiner noted that the Veteran went to work even if he was experiencing low back pain and that he had lost less than 1 week of work in the past 12-month period due to low back pain. On VA neurological examination in August 2011, the Veteran's left lower extremity was noted to have moderate pain, moderate paresthesias and/or dysesthesias, and mild numbness. There was no muscle atrophy. Muscle strength, deep tendon reflexes, sensory examination, and gait were normal. The Veteran did not use any assistive devices for locomotion. Examination revealed that the Veteran had mild, incomplete paralysis of the left sciatic nerve. The Veteran was diagnosed with lumbar radiculopathy. The examiner opined that the Veteran's peripheral neuropathy was due to his service-connected low back disability. He noted that the MRI of the lumbar spine had clearly documented that the Veteran had L5-S1 displacement of the nerve root. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's lumbar spine disability is appropriately evaluated as 10 percent disabling for all periods under consideration. The objective findings of record do not reflect evidence of forward flexion of the thoracolumbar spine to 60 degrees or less; combined range of motion of the thoracolumbar spine to 120 degrees or less; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). During all periods under consideration, the Veteran had full range of motion. The August 2006 VA examiner found that after three repetitions, the Veteran's range of motion was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance. Similarly, the September 2010 VA examiner noted that although there was pain on movement after three repetitions, the range of motion was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 10 percent assigned. 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). Although the Veteran has been diagnosed with intervertebral disc syndrome, the evidence does not show that he has experienced any incapacitating episodes. Indeed, the Veteran denied having any incapacitation at his August 2006 VA examination. Additionally, although the Veteran was diagnosed with intervertebral disc syndrome at his September 2010 VA examination, he was not found to have experienced any incapacitating episodes of spine disease during the past 12 months. His report of weekly flare-ups with a 50 percent loss of function warrants less probative weight. In fact, although the Veteran reported that he had lost less than 1 week of work in the past 12-month period due to back pain, he indicated that he generally went to work as a law enforcement officer even if he was experiencing low back pain. He did not report that supervisors made work accommodations for flare-up symptoms. An "incapacitating episode" for purposes of Diagnostic Code 5243 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. In this case, even if the Veteran had taken time off from work due to his back pain, there is no evidence that he has ever required bed rest prescribed by a physician for his lumbar spine disability. Accordingly, evaluation of the Veteran's disability pursuant to Diagnostic Code 5243 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that in July 2010, it had remanded the Veteran's claim, in part, for a full neurological examination of his lumbar spine to determine whether he had any associated neurological abnormalities. An August 2011 VA neurological examination revealed that the Veteran had left lower extremity peripheral neuropathy that was due to his service-connected lumbar spine disability. The examiner determined that the Veteran had mild, incomplete paralysis of the left sciatic nerve. As a result of this examination, the RO granted separate service connection for left lower extremity peripheral neuropathy and assigned a 10 percent rating for mild symptomatology. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The evidence indicates that the Veteran's neurological symptoms have been wholly sensory. He has only reported radiating pain, tingling, and numbness in his left lower extremity, and has consistently denied any bowel or bladder incontinence. Moreover, as previously noted, the Veteran did not file a notice of disagreement with the assigned disability rating. Thus, the Board finds that the neurological manifestations in the Veteran's left lower extremity have been accounted for in the assigned 10 percent disability rating. Regarding the Veteran's right lower extremity, the Board acknowledges the Veteran's complaints of low back pain that radiated into the right lower extremity. However, the evidence shows that neurological examination for the right lower extremity was normal during an April 2009 private treatment session and on both the August 2006 and September 2010 VA examinations. Additionally, the August 2011 VA neurological examination, which was undertaken to assess the neurological manifestations of the Veteran's lumbar spine disability, does not reveal any objective neurological deficit in the right lower extremity. Therefore, the Board finds that the medical evidence of record fails to show that the Veteran's lumbar spine disability was productive of any objective neurological manifestations in the right lower extremity for all periods under consideration sufficient to warrant a separate rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his lumbar spine disability. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluation assigned and do not more nearly approximate the criteria for a higher evaluation at any time during all relevant periods on appeal. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5243 (2012); see also Fenderson, supra. The Board has also considered whether the Veteran's lumbar spine 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 extraschedular 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 provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. His 10 percent rating contemplates his subjective complaints of pain and minimal functional impairment. Although the Veteran reported back pain that was a 7/10 in severity and that radiated into the lower extremities, the range of motion of the lumbar spine was not additionally reduced following repetitive use. As noted above, the Veteran's report of a 50 percent loss of function during a flare-up was not consistent with his ability to continued work albeit with discomfort. The Veteran was assigned a 10 percent rating for his mild incomplete paralysis of the left sciatic nerve, but there were no neurological manifestations in the right lower extremity or any other objective manifestations. Indeed, the Veteran had not had any incapacitating episodes of his spine disability. The Veteran's subjective complaints of pain were therefore included in the 10 percent rating. Thus, the Veteran's 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 above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is denied. ____________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs