Citation Nr: 1329450 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-22 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disorder (currently recognized as lumbar scoliosis with grade I spondylolisthesis at L5-S1) prior to January 7, 2000. 2. Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disorder from January 7, 2000 to June 14, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, established service connection for the Veteran's lumbar spine disorder. That decision assigned an initial noncompensable (zero percent) rating effective April 27, 1985, and a 20 percent rating from September 26, 2003. It is noted that the heading of that decision indicated that service connection was established from August 27, 1985, but the analysis section specifically states that it was established from April 27, 1985. Further, the June 2007 Statement of the Case (SOC) subsequently identified the effective date for the establishment of service connection as April 27, 1985, in its identification of the appellate issue(s). Thereafter, in September 2011, the RO assigned a 40 percent rating, effective from June 14, 2011. In July 2009, the Veteran accepted an informal conference with a Decision Review Officer (DRO) in lieu of a formal DRO hearing. A report of that informal conference is of record. In March 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of that hearing is also associated with the claims file. This case was previously before the Board in July 2012, at which time the Board dismissed the appeal to the extent it pertained to a rating in excess of 40 percent (from June 14, 2011) as the Veteran testified at his March 2012 hearing that this rating satisfied the benefit he was seeking. The Board remanded the issues of a compensable rating prior to September 26, 2003, and a rating in excess of 20 percent from September 26, 2003 to June 14, 2011 for further development. In pertinent part, the Board directed that additional VA treatment records be obtained, and such records have been added to the file. All other development directed by the Board's remand appears to have been substantially completed. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board also observes that a January 2013 rating decision by the Appeals Management Center (AMC) in Washington, D.C., in essence, assigned a 20 percent rating for the Veteran's service-connected lumbar spine disorder from April 27, 1985; and a 40 percent rating from January 7, 2000. A concurrent Supplemental Statement of the Case (SSOC) also reflects this development. Although the AMC used some confusing language in its identification and discussion of these issues, the Board has construed the appellate issues on the title page to most accurately reflect the current status of this appeal. The January 2013 rating decision also assigned a separate rating of 20 percent for right lower extremity radiculopathy effective from June 14, 2011. Although this action was also noted on the concurrent SSOC, nothing in the record available for the Board's review reflects the Veteran has expressed disagreement with either the initial rating assigned for this disability, or the effective date thereof. Moreover, the issue of a higher rating for the Veteran's back disability from June 14, 2011 was dismissed by the Board in the July 2012 decision. Accordingly, this issue is not in appellate status and inclusion of the radiculopathy issue on the SSOC was erroneous. This matter is not before the Board. See 38 C.F.R. §§ 20.200, 20.302. As an additional matter, the Board notes that it previously referred the issue of entitlement to an earlier effective date for the award of service connection for residuals of a closed head injury, to include scarring of the nose and upper lip to the Agency of Original Jurisdiction (AOJ). The record reflects the AMC also referred this issue to the AOJ. Nevertheless, nothing in the record available for the Board's review, to include the Virtual VA system, reflects this issue has, as yet, been addressed by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The record reflects the Veteran has had recurrent low back pain throughout the pendency of this case. 2. Even when taking into account the Veteran's complaints of pain, the record does not reflect that, prior to January 7, 2000, his service-connected lumbar spine disorder was manifested by severe limitation of motion; severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. 3. Prior to November 2, 1999, the Veteran's service- connected lumbar spine disorder was not manifested by severe symptoms of intervertebral disc syndrome, with recurring attacks and intermittent relief. 4. A November 2, 1999, MRI of the lumbar spine indicates severe symptoms of intervertebral disc syndrome, with recurring attacks and intermittent relief. 5. In March 2012, prior to the promulgation of a decision in the appeal, the Veteran indicated that he was satisfied with a 40 percent rating for his service-connected lumbar spine disorder; i.e., he notified the Board that he wished to withdrawal his appeal to the extent it pertained to a rating in excess of 40 percent for his service-connected lumbar spine disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to a rating in excess of 40 percent for his service-connected lumbar spine disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disorder prior to November 2, 1999, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59 (2013); 38 C.F.R. § 4.71a (Diagnostic Codes 5292, 5293, 5295) (2002). 3. The criteria for a rating of 40 percent for the Veteran's service-connected lumbar spine disorder are met as of November 2, 1999. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59 (2013); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, as detailed below, the Veteran has requested that his appeal be dismissed to the extent it pertains to a rating in excess of 40 percent for his service-connected lumbar spine disorder. Therefore, no further discussion of the VCAA regarding this aspect of the appeal is necessary. Regarding the issue of entitlement to a rating in excess of 20 percent prior to January 7, 2000, the Board observes that this appeal originated from a disagreement with the initial rating assigned following the establishment of service connection. Both the United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that 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). Nevertheless, the Board notes the Veteran was sent VCAA-compliant notification regarding this appeal via letters dated in October 2005 and August 2012. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. 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). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records to include from the Social Security Administration (SSA). Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the March 2012 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence detailing symptomatology of his service-connected lumbar spine disorder for the relevant period that is not demonstrated by the evidence already of record. Moreover, he was accorded a VA medical examination in December 1985 that included findings regarding the symptomatology of his lumbar spine disorder. No inaccuracies or prejudice is demonstrated with respect to this examination. In addition, there is no reasonable possibility that any additional examination would be relevant to this case as its findings would pertain to the current severity of this disability and not what it was for the period prior to January 7, 2000. With respect to the March 2012 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ accurately noted the appellate issues, and asked questions to clarify the Veteran's contentions. Moreover, the Veteran volunteered his treatment history and symptomatology. 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 this hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. Entitlement to a Rating in Excess of 40 Percent From January 7, 2000 to June 14, 2011 With respect to the issue of whether the Veteran is entitled to a rating in excess of 40 percent for the period from January 7, 2000, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the March 2012 Board hearing, the Veteran indicated satisfaction with the VA's award of a 40 percent rating for his service-connected lumbar spine disorder and requested a withdrawal of this portion of his appeal. See Transcript p. 6. He also indicated that the benefit he was seeking was a 40 percent rating dating to the establishment of service connection. See AB v. Brown, 6 Vet. App. 35 (1993) (The Court indicated that a claimant may limit an appeal to a specific rating). With the establishment of a 40 percent rating from January 7, 2000, there remain no allegations of errors of fact or law for appellate consideration as to the issue of a rating in excess of 40 percent from January 7, 2000 for the lumbar spine disorder. Accordingly, that portion of the appeal is dismissed. Entitlement to a Rating in Excess of 40 Percent Prior to January 7, 2000 The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 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 applies, assigning the 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 disability upon the person's ordinary activity, 38 C.F.R. § 4.10. 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). 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 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the criteria for evaluating spine disabilities were substantially revised during the pendency of this appeal. For example, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 for evaluating intervertebral disc syndrome were amended, effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). In addition, effective September 26, 2003, further changes have been made to the remaining criteria for evaluating spine disorders. See 68 Fed. Reg. 51454-51458 (August 27, 2003). However, when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, the Board must apply the prior regulation to rate the veteran's disability for periods preceding the effective date of the regulatory change. VAOPGCPREC 3-2000 (April 10, 2000). In this case, the focus of this adjudication is the period prior to January 7, 2000, which is clearly prior to the effective date of the relevant revisions to VA's rating criteria. Therefore, only the former criteria are for consideration in evaluating the Veteran's service-connected lumbar spine disorder. Diagnostic Code 5292 provides for the evaluation of limitation of motion of the lumbar spine. When the limitation of motion of the lumbar spine is slight, a 10 percent rating is provided. When the limitation of motion is moderate, a 20 percent rating is provided. When the limitation of motion is severe, a rating of 40 percent is warranted. 38 C.F.R. § 4.71a (2002). Diagnostic Code 5293 provides for evaluation of intervertebral disc syndrome. Intervertebral disc syndrome is assigned a noncompensable rating when it postoperative, cured. A 10 percent evaluation is assigned when it is mild. Moderate symptoms with recurring attacks are assigned a 20 percent evaluation. Severe symptoms, with recurring attacks and intermittent relief are assigned a 40 percent evaluation. Pronounced symptoms that are persistent and compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief are assigned a 60 percent evaluation. The maximum evaluation available under Diagnostic Code 5293 is 60 percent. 38 C.F.R. § 4.71a. Diagnostic Code 5295 provides for the evaluation of lumbosacral strain. With characteristic pain on motion, a rating of 10 percent is provided. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position, a rating of 20 percent is provided. When severe with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion, a rating of 40 percent is provided. 38 C.F.R. § 4.71a. In this case, the Board finds that the Veteran does not meet or more nearly approximate the criteria for a rating in excess of 20 percent prior to November 2, 1999, under any of the potentially applicable Diagnostic Codes. Initially, the Board does acknowledge that the Veteran has complained of low back pain throughout the pendency of this case. For example, he reported at the December 1985 VA examination that his back hurt occasionally, and was real sore at times. He also complained of back pain and stiffness at a subsequent November 1987 VA medical examination, but the examination itself only made findings regarding his service-connected right wrist disorder. Various statements from the Veteran, as well as his treatment records, also notes complaints of pain. Nevertheless, as detailed below, the record does not reflect the Veteran meets or more nearly approximates the criteria for a rating in excess of 20 percent prior to November 2, 1999, even when taking into account his complaints of pain. In regard to Diagnostic Code 5292, the Board notes that while the Veteran reported occasional pain/soreness at the December 1985 VA examination, he was found to have full motion of his low back. Treatment records dated in October 1999 note good range of motion in back, able to sit and stand without apparent difficulty even though he did push up on arms of chair to rise. A thorough review of the record, to include the service treatment records, does not otherwise reflect any specific range of motion findings during this period by which it can be factually ascertained the Veteran had limitation of motion to the extent necessary for a rating in excess of 20 percent under this Code; i.e., the record does not contain evidence which would support a finding of severe limitation of motion even when taking into account the Veteran's complaints of pain. With respect to Diagnostic Code 5295, the Board notes that the service treatment records include findings of lumbar strain in September 1981 and August 1982, and that the December 1985 VA medical examination diagnosed chronic lumbosacral strain recurrent. However, the only impairment indicated by the December 1985 VA examination is pain, and characteristic pain on motion warrants no more than a 10 percent rating under this Code. Similarly, the service treatment records also contain notations of muscle spasm, as do treatment records dated in October 1999. Muscle spasm is part of the criteria associated with a 20 percent rating under this Code. A thorough review of the record does not otherwise reflect that the Veteran's service-connected lumbar spine disorder was manifested by listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion prior to November 2, 1999. Regarding Diagnostic Code 5293, the Board finds that prior to November 2, 1999, the Veteran's service-connected lumbar spine disorder was not manifested by severe symptoms of intervertebral disc syndrome, with recurring attacks and intermittent relief. For example, X-rays taken in conjunction with the December 1985 VA examination revealed moderate anterior spondylolisthesis of L5 on S1; defects of the pars of the posterior arch; slight narrowing of the posterior aspect of the intervertebral joint space between L5 and S1; slight right mid-lumbar scoliosis present; but no evidence of other significant abnormality or pathology was appreciated. In short, the December 1985 X-rays indicated slight to moderate changes. Granted, the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Nevertheless, these findings do reflect little impairment of intervertebral disc syndrome, as do the other findings from the physical examination itself and treatment records for this period. For example, as already noted, he was found to have full motion of his low back on the December 1985 examination and good range of motion in October 1999. Moreover, the Veteran only reported occasional pain and soreness at the December 1985 examination, and that his pain was a 6-7 on a scale of 10 in October 1999 which indicates moderate severity. No other evidence is of record which indicates the type of severe symptoms contemplated by the 40 percent criteria prior to November 2, 1999. The Board acknowledges that a November 2, 1999, MRI of the lumbar spine revealed mild spondylolisthesis of L5 over S1 with "moderate to severe degeneration of the disc of L5-S1." (Emphasis added). The Board reiterates the law mandates 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 applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. The record also reflects he went from indicating his pain was 6-7 on a scale of 10 in October 1999, to 8-10 on a scale of 10 on January7, 2000, which indicates increase in pain during this period. Resolving all reasonable doubt in favor of the Veteran, the Board finds that it was factually ascertainable that he satisfied the criteria for a 40 percent rating under former Diagnostic Code 5293 as of November 2, 1999. As noted above, the Veteran has indicated that a 40 percent rating satisfies his appeal. See AB, 6 Vet. App. 35. For the reasons set forth above, the Board finds that the Veteran is not entitled to a schedular rating in excess of 20 percent for the period from April 27, 1985 to November 2, 1999; but that he is entitled to a rating of 40 percent from November 2, 1999. In making this determination, the Board took into account the Veteran's complaints of pain, as well as potential "staged" rating(s) in light of the holding in Fenderson, supra. However, a thorough review of the record does not indicate any distinctive period(s) prior to November 2, 1999, where the Veteran met or more nearly approximated the criteria for a rating in excess of 20 percent. 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 extraschedular 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 extraschedular 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). The Board finds that the rating criteria contemplate the Veteran's service-connected lumbar spine disorder. As already noted, this service-connected disability is primarily productive of pain and functional impairment, manifestations that are contemplated in the rating criteria. To the extent he experiences functional impairment due to pain other than limitation of motion, the impairment caused by pain was taken into account for the schedular criteria as required by 38 C.F.R. §§ 4.40, 4.45, and 4.59. No exceptional or unusual disability picture was otherwise indicated by the record. The rating criteria are therefore adequate to evaluate the Veteran's service-connected lumbar spine disorder and referral for consideration of extraschedular rating is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine and applied it to the extent the appeal was partially granted. However, as the preponderance of the evidence is against the remaining aspect of the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The appeal as to the issue of entitlement to a rating in excess of 40 percent for the Veteran's service-connected lumbar spine disorder from January 7, 2000 to June 14, 2011 is dismissed. A rating in excess of 20 percent for the Veteran's service- connected lumbar spine disorder for the period from April 27, 1985 to November 2, 1999, is denied. A rating of 40 percent for the Veteran's service-connected lumbar spine disorder is granted effective November 2, 1999, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs