Citation Nr: 1320358	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  08-23 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with degenerative joint disease, since November 22, 2011.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to April 1968, with additional service in the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The August 2007 rating decision, in pertinent part, granted service connection at a 10 percent initial evaluation for lumbosacral strain with degenerative joint disease, effective from January 5, 2007.  The Veteran timely appealed the initial evaluation assigned to this disability.

In February 2012, the RO issued a Statement of the Case granting an increased evaluation of 20 percent for the Veteran's service-connected lumbosacral strain with degenerative joint disease, effective November 22, 2011.  The Veteran subsequently continued his appeal seeking a higher evaluation for this condition.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded).

In April 2012, the RO issued a rating decision granting service connection at a 10 percent initial evaluation for left leg radiculopathy, secondary to the Veteran's service-connected lumbosacral strain with degenerative joint disease, effective October 21, 2011; and granting service connection at a noncompensable (0 percent) initial evaluation for residual scar status post lumbar decompression surgery, effective November 19, 2009.  Although notified of this decision in an April 2012 letter, the Veteran has not filed a notice of disagreement contesting either of the initial evaluations assigned to these disabilities.  Therefore, these evaluations are not under the jurisdiction of the Board.

In June 2012, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is in the Veteran's claims file.

In October 2012, the Board issued a decision that denied an evaluation in excess of 10 percent for lumbosacral strain with degenerative joint disease, prior to November 22, 2011.  The Board then remanded the issue of entitlement to an evaluation in excess of 20 percent for lumbosacral strain with degenerative joint disease, since November 22, 2011, for additional development.


FINDING OF FACT

Since November 22, 2011, the Veteran's degenerative joint disease has been manifested by a range of motion including forward flexion to no less than 75 degrees; abnormal gait; 5/5 muscle strength with no muscle atrophy; and no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for lumbosacral strain with degenerative joint disease, since November 22, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's claim seeking an evaluation in excess of 20 percent for lumbosacral strain with degenerative joint disease, since November 22, 2011, arises from his disagreement with the initial evaluation assigned to this condition following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including VA treatment records, private treatment records; and by providing the Veteran with the appropriate medical examinations to determine the severity of his lumbosacral strain with degenerative joint disease.  Most recently, the RO provided the Veteran with a Disability Benefits Questionnaire (DBQ) examination of the spine in February 2013.  The examination was performed by a DBQ physician who had reviewed the Veteran's claims file, reviewed with the Veteran his history of lumbosacral strain with degenerative joint disease, examined the Veteran, and included rationales for the conclusions reached therein.  The Board finds that this examination is adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The Veteran has not claimed that this examination was inadequate. Moreover, earlier examinations of the spine were also conducted in April 2007 and November 2011.

In October 2012, the Board remanded this matter to the RO directing that updated treatment records be requested; and that an updated examination of the spine be conducted.  The RO subsequently sent a November 2012 letter to the Veteran requesting that he submit or identify any additional pertinent evidence, including medical treatment records, in support of his appeal; obtained the Veteran's updated VA treatment records, dated through October 2012; and scheduled the Veteran for the February 2013 DBQ examination of the spine.  Accordingly, the directives of the Board's October 2012 remand have been accomplished.  See Stegall v. West, 11 Vet. App. 268 (1998).

There is no indication that additional evidence relevant to the issue being addressed is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  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 (2012).  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.

The Veteran is seeking an increased evaluation in excess of 20 percent of for his service-connected lumbosacral strain with degenerative joint disease, since November 22, 2011.

This condition is currently evaluated under the criteria of Diagnostic Code 5237, for lumbosacral strain, which applies the General Rating Formula for Diseases and Injuries of the Spine; the disability is evaluated 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.  38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012).

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned for 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 rating requires thoracolumbar spine forward flexion 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012).  Moreover, the General Rating Formula for Diseases and Injuries of the Spine provides that this evaluation scheme is applied 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.  Id.

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) (2012). 

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.  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) (2011); See also 38 C.F.R. § 4.71a , Plate V (2012).   Further, all measured ranges of motion should be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, Code 5237, Note 4.

In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).   

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 portrays 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 Veteran 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 (2012).  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 (2012).  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 (2012). 

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) (2012).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is contemplated 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.  A 40 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months.

Service connection for lumbosacral strain with degenerative joint disease was granted in August 2007, and a 10 percent initial evaluation was assigned, effective January 5, 2007.  Thereafter, a March 2010 rating decision granted a 100 percent evaluation from November 19, 2009 to January 1, 2010.  Subsequently, a February 2012 Statement of the Case granted a 20 percent evaluation for service-connected lumbosacral strain with degenerative joint disease, effective November 22, 2011.  

On November 22, 2011, the Veteran underwent a VA examination for the spine.
The examination report noted the Veteran's complaints of stiffness, spasms, weakness, and decreased motion in his lumbosacral spine.  It also noted that he denied having any symptoms of fatigue, paresthesias, numbness, bowel problems, bladder problems, or erectile dysfunction.  The Veteran indicated that he experienced pain on the lower spine, in the center and left-side, which occurred 50 times per day and lasted approximately one half hour each time.  The pain, described as moderate, traveled across his left buttock and down his left lateral leg, and was exacerbated by physical activity and stress.  During an episode of pain, the Veteran reported functional impairment described as pain and weakness with walking greater than 200 yards, standing for longer than five minutes, and lifting weights greater than 15 pounds.  Limitation of motion of the spine was described as difficulty bending forward, backward, and side to side, and pain with twisting the upper torso.  The Veteran denied having any incapacitating episodes in the past 12 months, but stated that he had difficulty doing yard work and shopping.

On physical examination, the Veteran's posture was within normal limits, but his gait was described as antalgic due to lower back pain.  Range of motion testing of the lumbosacral spine revealed forward flexion to 90 degrees, with pain beginning at 50 degrees; extension to 20 degrees, with pain beginning at 5 degrees; right lateral flexion to 30 degrees, with pain beginning at 10 degrees; and left lateral flexion to 10 degrees, with pain beginning at five degrees; left lateral rotation to 30 degrees, with pain beginning at 20 degrees; and right lateral rotation to 30 degrees, with pain beginning at 25 degrees.  Following repetitive-use testing with three repetitions, the lumbosacral spine exhibited a range of motion consisting of forward flexion to 90 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees.    The VA examiner noted that the Veteran had mild numbness in the left lower extremity; and indicated that the Veteran's spine disability is severe enough to cause an abnormal gait, and that he does use a cane to ambulate.  The report concluded with a diagnosis of lumbosacral strain with degenerative joint disease.  

At the June 2012 video conference hearing, the Veteran testified that he rests his back in a recliner.  He also testified that he had never had a physician order him to bed rest.  

A January 2012 VA treatment record noted the Veteran's complaints of pain in the left low back area with radiation to knee level posterior left side.  The Veteran reported that bending, twisting, sitting for prolonged periods of time, and walking increased his back pain, while lying prone decreased it.  With respect to range of motion testing, the VA physician reported the Veteran's symptoms in terms of the percentage of motion lost.  As such, flexion was described as 40 percent loss of motion; extension was 50 percent loss of motion; and rotation was 30 percent loss of motion.  The Veteran demonstrated a decreased lumbar lordosis, although no significant gait deviation was noted.

A February 2012 treatment report noted the Veteran's complaints of low back pain with limited radiation around the left side to the hip area.  He denied any associated weakness, numbness, tingling, and bowel and bladder problems.  His gait was antalgic, and straight leg raises on the left side caused left sided back pain only. 

In February 2013, a Disability Benefits Questionnaire (DBQ) examination of the spine was conducted.  The DBQ examiner noted that the Veteran's claims file and electronic medical record were reviewed pursuant to the examination.  The Veteran reported having constant back pain, which he rated as a 4 out of 10 in severity.  He described the pain as dull and aching, and denied having an flare-ups of pain that impact the function of the thoracolumbar spine.  Physical examination of the thoracolumbar spine revealed forward flexion to 75 degrees (with objective evidence of painful motion beginning at 65 degrees); extension to 15 degrees (with objective evidence of painful motion beginning at 5 degrees); right and left lateral flexion to 20 degrees (with objective evidence of painful motion beginning at 15 degrees on each side); and right and left lateral rotation to 30 degrees (with objective evidence of painful motion beginning at 30 degrees on each side).  Following repetitive range of motion testing, the Veteran's lumbosacral spine revealed forward flexion to 75 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 30 degrees.  The DBQ examiner noted that there was functional loss in the lumbosacral spine, specifically less movement than normal, with pain on movement.  The report noted that there was no evidence of guarding or muscle spasm of the thoracolumbar spine and no localized tenderness or pain to palpitation for the joints and/or soft tissue of the thoracolumbar spine.  Muscle strength testing revealed strength of 5/5, bilaterally, throughout the hips, knees, and ankle.  The report noted that there was no muscle atrophy and normal reflexes and sensory examinations in the lower extremities.  Straight leg raising tests were negative, and the report noted that there was no radicular pain or any other signs or symptoms due to radiculopathy.  The report noted that the Veteran did not have intervertebral disc syndrome, and does not use any assistive devices for ambulating.  

The examination report noted that the Veteran retired in 2006, and subsequently bought a coin shop where he works 5 days a week for 6 hours per day.  He indicated that he has missed 30 days of work in the past year due to back pain.  The report listed a diagnosis of lumbar spinal stenosis, status post decompressive laminectomy with residual scar.  In addressing whether the Veteran's thoracolumbar spine disability impairs his ability to work, the examiner noted that the Veteran would be limited in any vocation that involves lifting, carrying or prolonged standing and walking.  The examiner also noted that there has been no incapacitating episodes of back pain in the past year such that a doctor ordered bed rest.  

Considering the evidence of record, the Board finds that the overall disability picture associated with the Veteran's lumbosacral strain with degenerative joint disease does not more closely approximate the criteria for an evaluation in excess of 20 percent based upon limitation of motion of the spine at any time since November 22, 2011.  38 C.F.R. § 4.71a, General Rating Formula.  At no point during the pendency of this claim does the evidence of record demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  The February 2013 DBQ examination of the spine noted forward flexion to 75 degrees, even after repetitive testing.  Moreover, the examination report noted that objective evidence of pain of motion in forward flexion was not shown until 65 degrees; and repetitive range of motion testing did not reduce the forward flexion exhibited.  Under these circumstances, the Board finds that an evaluation in excess of 20 percent for the Veteran's service-connected lumbosacral strain with degenerative joint disease is not warranted under the General Rating Formula.  Id.

In making this determination, the Board has considered whether there was any additional functional loss not contemplated in the 20 percent evaluation for the Veteran's orthopedic manifestations of his service-connected lumbosacral strain with degenerative joint disease.  See 38 C.F.R. §§ 4.40, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  The February 2013 DBQ examination noted
that there was no additional limitation in range of motion in the thoracolumbar spine following repetitive range of motion testing.  The examination report also noted that there was no muscle atrophy found, and muscle strength testing revealed 5/5 strength in the Veteran's hips, knees and ankles, bilaterally.  The examiner further noted that straight leg raising tests were negative, that there was no signs of radicular pain or any other signs or symptoms due to radiculopathy, and that there had been no incapacitating episodes of back pain in the past year such that a doctor ordered bed rest.  

Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Notably, the rating of intervertebral disc syndrome is based on incapacitating episodes (i.e., doctor-prescribed bedrest).  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2011).  However, there is no medical evidence or complaint of bed rest prescribed by a physician.  Therefore, there exists no basis whatsoever for a higher evaluation under Diagnostic Code 5243.  

During the course of this appeal, the RO issued an April 2012 rating decision which granted service connection at a 10 percent initial evaluation for left leg radiculopathy, secondary to the Veteran's service-connected lumbosacral strain with degenerative joint disease, effective October 21, 2011; and granted service connection at a noncompensable (0 percent) initial evaluation for residual scar status post lumbar decompression surgery, secondary to service-connected lumbosacral strain with degenerative joint disease, effective November 19, 2009.  As noted above, the initial evaluations assigned to these disabilities are not under the jurisdiction of the Board.  Moreover, there is no indication that a higher evaluation is warranted for either disability.  The Veteran's left leg radiculopathy has been described as mild to nonexistent in severity; and the residual scar has been described as well healed, with no functional residuals.

No other associated objective neurologic abnormalities related to the Veteran's lumbosacral strain with degenerative joint disease are shown.

Generally, evaluating a disability using either the corresponding or the analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012).

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.  Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366(Fed. Cir. 2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates the Veteran's disability picture, and the assigned schedular evaluation is adequate, and no referral is required. 

The schedular evaluations in this case are adequate.  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 rating 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 the diagnostic codes, but the Veteran's disability is not productive of such manifestations.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

Finally, while there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected lumbosacral strain with degenerative joint disease, the evidence shows no distinct period of time since November 22, 2011 during which manifestations of this disability have varied to such an extent that an increased rating would be warranted.  Fenderson, 12 Vet. App. at 126-127.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence does not show manifestations of the Veteran's service-connected lumbosacral strain with degenerative joint disease that meet the criteria for an increased evaluations at any point during the pendency of this appeal, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 

ORDER

An evaluation in excess of 20 percent for lumbosacral strain with degenerative joint disease, since November 22, 2011, is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs