Citation Nr: 1339770 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 07-12 326 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 20 percent for the service-connected degenerative changes of the lumbar spine, prior to June 10, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the RO. In July 2009, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. In November 2009, the Board remanded the case for additional development. In a September 2011 decision, the Board assigned an initial rating for 40 percent for the service-connected lumbar spine degenerative changes beginning on June 10, 2009, but denied the claim for a rating in excess of 20 percent prior to that date. The Board assigned an initial 20 percent rating for the service-connected disability manifested by left lower extremity neurological impairment, but denied a rating in excess of 10 percent for neurological impairment affecting the right lower extremity. The Veteran appealed the September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2013, the Court issued a memorandum decision, partially vacating the decision with respect to the issue of an initial rating in excess of 20 percent for the service-connected degenerative changes of the lumbar spine, prior to June 10, 2009, and remanding the matter to the Board for further proceedings consistent with the Court's decision. A review of the Veteran's Virtual VA and VBMS electronic claims file reveals additional VA outpatient treatment records dated through October 2013 and a VA examination report dated in October 2013; however, given that the issue on appeal pertains only to the period prior to June 10, 2009, these records are not relevant to the current appeal. As such, remand for initial RO consideration of this evidence is not warranted. In this case, the Veteran has indicated that he is unable to work due to his service-connected disabilities-and namely, his lumbar spine disability-a claim for a TDIU rating has been separately adjudicated by the RO in an unappealed rating decision in July 2010 and again in October 2013. Consequently, no further consideration of the claim for a TDIU rating under Rice is warranted by the Board at this time FINDING OF FACT For the period prior to June 10, 2009, the service-connected degenerative changes of the lumbar spine is shown to have been productive of a functional loss due to pain that more nearly approximated a disability picture manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; neither unfavorable ankylosis of the entire thoracolumbar spine nor incapacitating episodes as defined by regulation were demonstrated. CONCLUSION OF LAW Prior to June 10, 2009, the criteria for the assignment of a 40 percent rating, but no higher, for the service-connected degenerative changes of the lumbar spine were met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appropriate VCAA notice letters were sent to the Veteran in February and March 2006, prior to the initial adjudication of the claim. The letters notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the March 2006 letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. VA outpatient treatment records and private treatment records, as well as Social Security Administration (SSA) records, are also associated with the claims file. The Veteran underwent VA examinations in November 2006 and September 2007 to determine the nature and severity of his degenerative changes of the lumbar spine. The Veteran was also afforded a hearing in July 2009. During the hearing, the Veterans Law Judge clarified the issue and explained the basis for rating the disability on appeal. His functional impairment and manifestations were addressed. The Veteran was provided an opportunity to submit additional evidence. The actions of the Veterans Law Judge supplement the VCAA and comply with any duties owed during a hearing. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret 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. 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 apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. 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 undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Analysis Historically, the RO granted service connection for degenerative changes of the lumbar spine in a November 2006 rating decision. A 20 percent rating was assigned, effective on December 30, 2005. As indicated, the Board awarded a 40 percent rating effective on June 10, 2009, and only the period prior to this date remained on appeal. The service-connected low back disability has been evaluated as 20 percent disabling for the period prior to June 10, 2009 pursuant to Diagnostic Code 5242. This evaluation was assigned under the General Rating Formula for Disease and Injuries of the Spine (General Formula), which applies to Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. Intervertebral disc syndrome (IVDS) may be rated alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Incapacitating Episodes). 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected, a 20 percent is assigned for 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 rating is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or, where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Note (1) following the General Formula indicates that any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, is to be evaluated separately under an appropriate diagnostic code. Note (2) following the General Formula provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 ranges of motion 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. Note (5) following the General Formula states that unfavorable ankylosis is shown when 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; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The pertinent evidence of record includes a November 2005 VA MRI report of the lumbar spine. The MRI revealed right L5/S1 disc extrusion and nerve compression and moderate generalized degenerative spondylosis. On VA examination in November 2006, the Veteran complained of lower lumbar pain which radiated anteriorily down the right lower extremity to the knee. Because of his low back problem, he walked somewhat slowly to avoid jarring his back. During flare-ups, he reportedly had very limited ability to walk. He denied any acute incapacitating episodes in which a physician prescribed bed rest during the past 12 months. The Veteran indicated that he last worked in 2001 as a press operator in a box factory. He reported that his low back did not affect his work when he was employed. However, his back did affect his activities of daily living during flare-ups. His flare-ups occurred every couple of months and lasted about 2 weeks at a time. During at that time, he could not walk more than 25 feet. He used a lumbar support as an assistive device when he sat for prolonged periods. On examination, the Veteran's low back flexed to 50 degrees, extended to 15 degrees, laterally flexed to 15 degrees in both direction, and rotated to 30 degrees in both directions. The examiner indicated that there was pain at the end of range of motion. After repetitive use, lumbar flexion decreased to 40 degrees and extension decreased to 10 degrees, due to pain. Palpation of the back revealed no spasm, but there was lower lumbar tenderness to palpation. Straight leg raising was negative, bilaterally. Neurologically, motor strength, tone, and light touch sensation were normal in both lower extremities. His gait was somewhat slow. A lumbar spine x-ray studies showed degenerative changes most severe at L5/S1. There was also evidence of scoliosis. A diagnosis of lumbar spondylosis was assigned. An April 2007 VA outpatient treatment report reflected that the Veteran presented with complaints of low back pain which he described as aching or pin-like. The pain worsened with prolonged sitting, lying supine, standing, walking, or forward bending. He denied any leg weakness, numbness, tingling, or problems with bowel or bladder control. A May 2007 VA physical therapy consult reflected that the Veteran reported pain in the middle of his back, which he rated a 5 on a scale to 10, with occasional flare-ups he rated a 10 out of 10. The physical therapist noted that the Veteran exhibited an ataxic antalgic minimal reciprocal gait pattern with a slight limp to his right side. He described having pain when trying to sleep on either side, getting in or out of bed, and getting up off of the floor. Palpation to his back did not increase pain, nor were there any signs of swelling, redness, or warmth. He performed all movements in a slow, cautious manner. A June 2007 VA physical therapy referral report reflected that that the Veteran was referred for low back strengthening and stretching exercises for right lumbar radiculopathy. It was noted that travel was very problematic for the Veteran. Subsequent physical therapy records from the Mary Black Memorial Hospital dated in July and August 2007 reflected that the Veteran was treated with physical therapy to improve his low back pain and his range of motion. An August 2007 VA outpatient treatment report reflected that the Veteran's report that his symptoms had not changed. Continued physical therapy was recommended. On VA examination in September 2007, the Veteran complained of constant low back pain. He indicated that he used a stimulator to help ease his back pain, but he still experienced constant pain. His pain began in the spinal midline at approximately the L4/L5 level. There was radiation to the right anterior thigh to the level of the knee. The pain was constant and rated a 5 out of 10 in severity, exacerbated by any movement. Pain was also alleviated with rest. He denied any current effect of the pain on his ability to walk. He also denied any incapacitating episodes during the past 12 months. The Veteran reported that he was forced to retire as a dye mounter for a machine shop due to his back pain. He denied any significant impact upon his activities of daily living and had no flare-ups in the past 6 months. He had experienced previous flare-ups occurring every couple of months which lasted about 2 weeks during which he could not walk more than about 25 feet. He attributed the absence of flare-ups in the past 6 months to his current use of the muscle stimulator. He did not require use of an assistive device. On examination, flexion was performed to 15 degrees and was pain free and to 40 degrees with pain. Extension was to 10 degrees and was pain free and to 15 degrees with pain. Right lateral flexion was to 15 degrees with end of range pain prohibiting further flexion. Left lateral flexion was to 15 degrees pain-free and to 25 degrees with pain. Right rotation and left rotation were each to 30 degrees pain-free and to 45 degrees with pain. The ranges of motion measured were not additionally limited following repetitive use. No muscle spasm or tenderness was present in the lumbar spinal area. A straight-leg raise test was negative. Gait was somewhat slow but otherwise normal. An MRI of the lumbar spine showed minimal disc bulge and facet arthropathy at L2/3. There was mild intravertebral disc space narrowing with mild disc bulge and a patent spinal canal neural foramen at L3/4. A right paracentral disc protrusion was seen at L4/5. At L5/S1, there was marked intravertebral disc space narrowing, right paracentral disc excursion with moderately severe encroachment of the right neural foramen. A diagnosis of lumbar spondylosis and degenerative disc disease was assigned. An October 2008 VA outpatient treatment report reflected that the Veteran continued to complain of back pain, but indicated that a TENS unit did provide some relief of pain. He also continued to take prescribed pain medication. A May 2009 VA outpatient treatment report reflects the Veteran's complaints of intermittent flare-ups of back pain that had worsened as he had gotten older. A June 2009 private treatment report from Dr. E. reflected that the Veteran complained of low back pain with left leg pain. He stated that the pain was present at all times, aggravated by sitting or walking, and somewhat alleviated with use of a TENS unit. He had pain down the left leg to the front of the thigh to the knee. Objectively, the Veteran moved around the examining room slowly favoring the right lower extremity. The lumbar spine was well balanced with about 0 degrees of motion in each plane. Forward flexion was to 30 degrees, right and left lateral bending were to 30 degrees with pain, and extension was to 10 degrees. Trochanteric bursae and sciatic notches were nontender. He could heel-and-toe walk well shakily, but with no signs of weakness. Straight leg raising was negative bilaterally. An impression of chronic low back pain secondary to degenerative disc disease was indicated. A July 2009 psychiatric examination report reflected that the Veteran rated his pain a 9 on a scale to 10, and that the pain was located on the right side of his back. There was no relief with pain medication and the pain completely interfered with his general activity, mood, walking ability, sleep, and enjoyment of life. During the July 2009 hearing, the Veteran reported having increased low back pain and stiffness. He reported that his ability to bend forward had decreased over the past 3 to 4 years. He described incapacitating episodes of back pain a couple of weeks per year where he experienced pain that left him totally "down and out." He indicated that he could not stay in the same position very long, and that he spent around 6 or 7 hours per day in bed or reclining. He used a TENS unit and pain medication for treatment. He categorized his pain as moderately severe to severe, with an average pain level of 7 on a scale to 10 with flare-ups of increased pain. The Veteran noted that increased activities led to increased pain. He could only sit 30 to 40 minutes before pain and discomfort set in. Standing was also limited to 10 to 15 minutes. He reported that he did not walk a lot. The Veteran's spouse, a registered nurse, also indicated that she noticed that the Veteran's symptoms had worsened over the past 3 to 4 years. She indicated that the Veteran spent about 6 hours a day in bed or reclining, and he did not help around the house much. She also indicated that while the Veteran used a riding mower, he did not perform any other yard work. She noted that he told her that his back hurt all the time. A November 2009 VA outpatient treatment report reflects a continued report of low back pain. It was noted that the Veteran was using a TENS unit and was taking medication to treat his pain. A December 2009 statement from the Veteran's wife indicated that the Veteran had difficulty sleeping due to his back pain and was in constant and severe pain. With respect to the claim for increased rating for chronic lumbar strain with degenerative disc disease for the period prior to June 10, 2009, the aforementioned evidence reflects that the disability has been manifested by consistent symptoms of pain, stiffness and limited range of motion with occasional flare-ups of severe pain. Given that these complaints have remained primarily the same throughout the entire appeal period, the Board finds that a 40 percent rating is assignable for the period prior to June 10, 2009. In reaching this determination, the Board notes that the evidence has varied. However, during this initial period, there was evidence of pain throughout range of motion and increased pain with flare-ups. While forward flexion was not documented to be limited to 30 degrees until the June 2009 private treatment report, the evidence prior to that date tends to establish that flexion was functionally limited to 30 degrees or less, particularly given the September 2007 VA examination report reflecting pain-free forward flexion only to 15 degrees. The Board also finds that the record does not support the assignment of a rating in excess of 40 percent for the period on appeal. The Board has reviewed relevant evidence of record for the period prior to June 10, 2009, to include VA examinations and VA and private medical records. Such evidence does not show unfavorable ankylosis of the entire thoracolumbar spine. As set forth, the Veteran demonstrated a range of motion throughout the entire thoracolumbar spine. The Board has considered the Veteran's complaints regarding significant back pain and limitations. Objective findings, however, do not support a higher evaluation based on functional impairment due to pain on motion or other factors and the Veteran's disability picture prior to June 10, 2009 was not shown to have been productive of unfavorable ankylosis of the entire thoracolumbar spine. See DeLuca. Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted (other than on the left and right leg) because neurologic findings and symptoms warranting separate ratings have not been demonstrated. The Veteran is already service-connected for left and right leg radiculopathy. No other neurologic impairment has been shown. Pursuant to Diagnostic Code 5243, the evaluation of IVDS is either under the General Formula or under the Formula for Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Accordingly, the Board has considered whether the Veteran is entitled to a higher evaluation under the Formula for Incapacitating Episodes, which provides for a 60 percent rating when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. For the purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See Formula for Incapacitating Episodes at Note (1). On review, the record does not show that, at any point during the period prior to June 10, 2009, that the Veteran experienced qualifying incapacitating episodes of IVDS. While the Veteran stated during his Board hearing that he has experienced periods where he was "down and out" due to severe back pain and that he spent approximately 6 hours per day lying down or reclining, incapacitating episodes requiring physician-prescribed bed rest, as defined by regulation have simply not been shown. Moreover, the Veteran denied incapacitating episodes on VA examinations during this time period. The Board has considered the Veteran's and his wife's lay statements regarding the severity of his lumbar spine disability. While the Board finds that the Veteran is competent to report his symptoms and credible, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the service-connected degenerative changes of the lumbar spine are exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The Board finds that the rating criteria used to evaluate the service-connected degenerative changes of the lumbar spine reasonably describe his disability level and symptomatology. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disabilities. Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disabilities. 38 C.F.R. § 4.1. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In adjudicating the claim for a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine. While the Board has resolved all reasonable doubt in the Veteran's favor in granting an initial 40 percent rating for the service-connected degenerative changes of the lumbar spine prior to June 10, 2009, the preponderance of the evidence is against assignment of any higher rating for this disability for this period. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An increased, initial rating of 40 percent, but no more, for the service-connected degenerative changes of the lumbar spine prior to June 10, 2009, is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs