Citation Nr: 1325349 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-05 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability evaluation higher than 10 percent for traumatic arthritis, right knee. 2. Entitlement to a disability evaluation higher than 10 percent for traumatic arthritis, left knee. 3. Entitlement to an initial disability evaluation higher than 10 percent for left knee instability. 4. Entitlement to a disability evaluation higher than 10 percent for low back spondylolisthesis, residuals of injury (low back disability). ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran retired from active duty in November 2004 after serving more than 20 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for left knee instability and assigned a 10 percent disability rating and denied ratings in excess of 10 percent for left and right knee arthritis and for a low back disability. In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. An August 2010 rating decision granted service connection for right lumbar radiculopathy (also claimed as nerve damage to right groin, hip and testicle). The Veteran has not separately appealed the initial rating or effective date assigned and thus the issue is not before the Board. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for VA to bifurcate a claim for benefits). In June 2011, the Board remanded the issues to the agency of original jurisdiction (AOJ) for additional development. The April 2008, October 2011 and April 2013 VA examination reports reflects that the Veteran is employed on a full-time basis. Thus, the Board finds that the Veteran has not filed or raised a claim for entitlement to a total rating based upon individual unemployability (TDIU). The Board again remanded the claim in December 2012 for further development and consideration. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's traumatic arthritis of the right knee has been productive of pain with extension to 0 degrees and flexion to no less than 120 degrees including on repetition, without clinical evidence of ankylosis; the right knee has manifested no instability. 2. The preponderance of the evidence shows the Veteran's traumatic arthritis of the left knee has been productive of pain with extension to 0 degrees and flexion to no less than 110 degrees including on repetition, without clinical evidence of ankylosis. 3. The preponderance of the evidence shows the Veteran's left knee instability has manifested with no more than slight medial and lateral instability. 4. The preponderance of the evidence shows the Veteran's low back disability is manifested by forward lumbar spine flexion greater than 60 degrees, a combined range of motion greater than 120 degrees, and no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; no neurological deficit, and no incapacitating episodes of intervertebral disc disease requiring bed rest prescribed by a physician. Painful motion has been shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent rating for traumatic arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2012). 2. The criteria for a disability rating in excess of 10 percent rating for traumatic arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2012). 3. The criteria for a disability rating in excess of 10 percent for instability of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5257 (2012). 4. The criteria for an initial rating in excess of 10 percent for low back disability are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in April 2008. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board finds that VA has secured all available and identified pertinent in-service and post-service evidence. The Board's remands directed the agency of original jurisdiction (AOJ) to obtain and associate with the record additional treatment records, which were associated with the Veteran's claims file. In addition, the remands also directed the AOJ to obtain a VA examination. A compensation examination adequate for rating purposes was obtained in April 2013. Therefore, the Board finds that there was substantial compliance with the Board remand directions and VA adjudication of the current claim may proceed. 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)). II. Analysis Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In March 2008, the Veteran requested increased ratings for his service-connected traumatic arthritis of both knees and low back disability. A June 2008 rating decision denied the increased rating claims and granted service connection for left knee instability, and assigned a separate 10 percent disability rating. The Veteran contends that increased ratings should be assigned for these disabilities since they are more disabling than currently evaluated. A. Knee Disabilities Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Diagnostic Codes 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or, a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Limitation of flexion of a leg warrants a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg is noncompensable when extension is limited to 5 degrees. A 10 percent evaluation is warranted with extension limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Additional rating criteria are found under Diagnostic Codes 5256 (ankylosis of the knee), Diagnostic Code 5258 (which provides for a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint), 5259 (which provides for a 10 percent rating for symptomatic removal of the semilunar cartilage), and 5262 (impairment of the tibia and fibula). VA's General Counsel has clarified that for a knee disability rated under Diagnostic Code 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and Diagnostic Code 5003. VAOPGCPREC 9-98 (1998). VA's General Counsel has more recently held that separate ratings are also available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2012). The RO has evaluated the bilateral traumatic arthritis of the knees as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010. On VA examination in April 2008, the examiner diagnosed bilateral traumatic arthritis of the knees. Active right knee flexion was 0 to 120 degrees without pain. Active left knee flexion was 0 to 110, with pain at 100 degrees. Knee extension was noted to 0 degrees, bilaterally. Repetitive range of motion provided no additional limitation. The right knee was productive of crepitus and grinding but showed no instability; however, the left knee, which was also was productive of crepitus and grinding, showed medial and lateral instability. No knee subluxation was found. No other abnormality was found. A July 2009 private medical record shows that the Veteran had right knee chondromalacia, mild osteoarthritic changes and no internal derangement. On VA examination in October 2011 bilateral knee flexion was noted as 130 degrees. Bilateral knee extension is noted at 0 degrees. No objective evidence of pain on motion was found and repetitive range of motion provided no additional limitation. Knee muscle strength was 5/5, bilaterally. The left knee showed 1+ (0 to 5 millimeters) medial and lateral instability, the right knee showed no instability. No knee subluxation was found. The examiner indicated that the knee disabilities had no significant impact on the Veteran's employability and that the pain was controlled by oral medications. On VA examination in April 2013, the examiner noted bilateral knee extension to 0 degrees. Active right knee flexion was 0 to 135 degrees without pain. Active left knee flexion was 0 to 130 degrees. There was no objective evidence of pain on active range of motion. Repetitive range of motion provided no additional limitation. No instability of either knee was noted. X-ray imaging showed arthritis of the knee. No knee subluxation was found. In addition, VA outpatient treatment records reflect complaints, findings and conclusions consistent with those noted in the VA examination reports. After reviewing all of the clinical evidence and subjective complaints throughout the appeal the Board finds that initial disability evaluations in excess of 10 percent for the Veteran's bilateral traumatic arthritis of are not warranted for the entirety of the appeal period. In this regard, the Board finds that the Veteran's bilateral knee traumatic arthritis is manifested by noncompensable limitation of motion. The knee is a single major joint; hence a higher rating under Diagnostic Codes 5010, 5003 is not warranted. See 38 C.F.R. § 4.45(f); 4.71, Diagnostic Code 5003 (2012). Also, the knee disabilities have not met the criteria for a higher rating under Diagnostic Code 5260 or 5261, for limited flexion and/or extension, at any time during the appeal. A 20 percent rating requires flexion limited to 30 degrees and extension limited to 15 degrees, respectively. Here, right knee flexion has not been shown to have been less than 120 degrees at any time over the appeal period, left knee flexion has not been shown to have been less than 110 degrees at any time over the appeal period, and extension has been full to 0 degrees bilaterally. The Board has also considered the Veteran's reports of pain, but finds that his overall level of functional impairment, including his ability to attain noncompensable flexion and normal extension bilaterally, no higher rating being warranted. In reaching this determination, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205-06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. Here, given the Veteran's slight limitation of flexion and his overall range of motion, the Boards finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent for either knee based on limitation of motion. Thus, a higher rating is not warranted. The Veteran's symptoms and limitation of motion supports the assigned 10 percent rating for each knee, but not the assignment of a higher rating as he does not have greater limitation of motion. Moreover, a separate rating pursuant to Diagnostic Code 5261 pertaining to limitation of extension is not warranted as he has full range of extension bilaterally. The Board further finds that a disability evaluation in excess of 10 percent for left knee instability is not warranted as the preponderance of the evidence is against a finding of moderate instability. The October 2011 VA examination shows that the Veteran's left knee instability measured between 0 to 5 millimeters, and the latest VA examination of record in April 2013 noted no instability. As right knee instability has not been shown, a separate rating for right knee instability is not warranted. Separate or higher evaluations are warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 are inapplicable as there is no evidence of dislocated or removed semilunar cartilage. The Board has found no other diagnostic codes which would provide higher or separate ratings for the Veteran's bilateral knee disabilities. Specifically, there is no evidence of ankylosis; impairment of the tibia and fibula; or genu recurvatum noted in any of the VA treatment records or VA examinations. Therefore, none of those diagnostic codes are factually applicable in this case. See Diagnostic Codes 5256, 5262, and 5263; see also Butts v. Brown, 5 Vet. App. 532, 539 (1993). At no time during the pendency of this claim, has the disabilities been more or less disabling than as currently rated. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and an increased knee ratings are not warranted. B. Low Back Disability a. Orthopedic Considerations The Veteran's low back disability is evaluated 10 percent disabling under Diagnostic Code 5242, degenerative arthritis of the lumbar spine. The Rating Schedule provides that a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees, or when there is muscle spasm, guarding, or localized tenderness that does not result in an abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see 38 C.F.R. § 4.71a, Plate V. On April 2008 VA examination, low back range of motion is 80 degrees flexion, 30 degrees extension, bilateral lateral flexion, and bilateral rotation. Extension manifested pain from 20 to 30 degrees. Total range of motion of the lumbar spine is 230 degrees. There was no other objective evidence of pain on active range of motion besides on low back extension. Repetitive range of motion provided no additional limitation. Low back muscle, reflex, and neurological examinations were normal. There was no low back muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. On October 2011 VA examination, low back flexion was 0 to 80 degrees. Extension was 0 to 25 degrees, with pain at 25 degrees. Right and left lateral flexion was 0 to 30 degrees. Right and left lateral bending was 0 to 30 degrees. The combined range of motion was 225 degrees. There was no other objective evidence of pain on active range of motion besides on the endpoint of low back extension. Repetitive range of motion provided no additional limitation. The examiner also indicated that the knee disabilities had no significant impact on the Veteran's employability and that the pain was controlled by oral medications. On VA examination in April 2013, the examiner diagnosed low back spondylolisthesis, residuals of injury with no evidence of radiculopathy. Low back flexion was 0 to 75 degrees. Extension was 0 to 20 degrees. Right and left lateral flexion was 0 to 30 degrees. Right and left lateral bending was 0 to 30 degrees. The combined range of motion was 215 degrees. There was no objective evidence of pain on active range of motion. Repetitive range of motion provided no additional limitation. The examiner added that the Veteran was able to exercise and that he did 10 repetitions of 3 sets of lifting 200 pounds of weight and that his pain was relieved by medication. These findings represent forward flexion of the lumbar spine greater than 60 degrees and combined lumbar spine range of motion greater than 120 degrees. See Diagnostic Code 5237. No muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis has been found on examination. Therefore, a 20 percent rating is not warranted. In addition, no functional impairment of the low back, painful motion, spasm, weakness, tenderness, or additional limitation of motion was found on VA examinations. A higher disability evaluation is not warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). b. Intervertebral Disc Syndrome (IVDS) The Veteran's examination and treatment records are devoid of any prescription of bed rest to treat his back condition. Accordingly, a higher rating is not available for IVDS under Diagnostic Code 5243. c. Neurological Considerations The revised regulations also mandate that consideration be given to any associated objective neurologic abnormalities (in addition to orthopedic manifestations), including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Besides the already service-connected right lumbar radiculopathy, there is no evidence of any neurological manifestations of the Veteran's low back disability. On October 2011 and April 2013 VA examinations, no objective evidence of bilateral lower extremity radiculopathy or peripheral neuropathy was found. As such, the criteria for additional separate ratings for neurological manifestations have not been met. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. III. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral knee and low back disabilities, which include pain, limited motion, weakness, and instability. The October 2011 VA examiner found that the Veteran's knee and low back disabilities did not significantly impact his ability to work. The April 2013 VA examiner found that the Veteran's knee and low back disabilities had no impact on his ability to work. The rating criteria are therefore adequate to evaluate the bilateral knee and low back disabilities and referral for consideration of an extraschedular rating is not warranted. ORDER A disability evaluation higher than 10 percent for traumatic arthritis, right knee is denied. A disability evaluation higher than 10 percent for traumatic arthritis, left knee is denied. A disability evaluation higher than 10 percent for left knee instability is denied. A disability evaluation higher than 10 percent for low back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs