Citation Nr: 1340642	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  10-07 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for lumbar strain with lumbar degenerative disc disease at L3-4 and L5-S1.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1972 to October 1974, from February 2003 to July 2003, and from October 2004 to January 2006.  There are additional periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, granted service connection for lumbar strain with lumbar degenerative disc disease at L3-4 and L5-S1, assigning an initial 10 percent disability rating.  

The Veteran appealed to the Board and testified before the undersigned at a July 2011 videoconference hearing.  A transcript has been associated with the file.

In a November 2011 decision, the Board remanded the matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development to include obtaining additional treatment records and providing an examination to determine the nature and severity of the Veteran's lumbar spine strain with lumbar degenerative disc disease at L3-4 and L5-S1.  The requested actions having been completed and the matter readjudicated by the RO in a July 2012 Supplemental Statement of the Case, the matter has properly been returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The Veteran's lumbar spine strain with lumbar degenerative disc disease at L3-4 and L5-S1 is manifested by subjective complaints of pain, weakness, fatigability, and decreased range of motion with objective evidence of some painful motion and slight limitation of motion of the thoracolumbar spine.  The Veteran does not have moderate or severe limitation of motion or ankylosis of the thoracolumbar spine, nor has he experienced incapacitating episodes or neurological manifestations.
CONCLUSION OF LAW

The criteria for a rating higher than 10 percent for a spine disability, specifically lumbar spine strain with lumbar degenerative disc disease at L3-4 and L5-S1, have not been met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237-5243, General Rating Formula for Diseases and Injuries of the Spine (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  However, the law only requires that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

In the appeal of an initial assignment of a disability rating, evidence to be considered is not limited to that reflecting the current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate evaluations for separate periods based on the facts found during the appeal period.  Id. at 126; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

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 portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The factors involved in evaluating and rating disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45.

Disabilities of the cervical and thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (the "Formula").  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012).  The Veteran's thoracolumbar spine disability has been assigned an evaluation of 10 percent for the entire period of this appeal based upon the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5237-5243.  The Formula provides, in relevant part, the following ratings as they apply to the thoracolumbar 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.  Id.  A 20 percent evaluation 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.  Id.  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and a maximum 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine.  Id.

"Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension".  See id., Note (5).  These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine".  68 Fed. Reg. at 51,455 (Supplementary Information).

Notes appended to the new General Rating Formula for Diseases and Injuries of the Spine specify that associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code.  38 C.F.R. § 4.71a, Note (1).  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.  Id., Note (2).  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id.  Ranges of motion are to be rounded to the nearest five degrees.  Id., Note (4).  Separate disability ratings are to be given for the thoracolumbar and cervical spine segments.  Id., Note (6).

The Veteran has been diagnosed with bulging discs at L3-4, at L4-5, and at L5-S1, so the criteria pertaining to intervertebral disc syndrome (IVDS) also apply.  IVDS rated under Diagnostic Code 5243 is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining, under 38 C.F.R. § 4.25, separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  The criteria contained in Diagnostic Code 5243 provides for a 20 percent evaluation where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.  Id., Note (2).

At all times during the appeal period, the Veteran's thoracolumbar spine disability has been assigned an evaluation of 10 percent under the General Rating Formula.  See 38 C.F.R. § 4.71a.  Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his thoracolumbar spine disability at any point during his appeal. 

The evidence of record contains the results of two medical examinations in addition to treatment records spanning the entire appeal period.  The first medical examination was performed in June 2008 by a private physician at the request of the VA shortly after the Veteran filed his claim.  The second medical examination was performed by a VA examiner in November 2011 subsequent to a remand to obtain an opinion regarding the current condition of the Veteran's thoracolumbar spine.  Hence, the Board has before it VA examinations and treatment records that span the entire period of appeal.  The evidence is sufficient to resolve the Veteran's claim for a higher initial rating for his service-connected thoracolumbar spine disability.

The private physician who conducted the June 2008 examination reviewed the Veteran's medical history, including the results of a 2006 MRI that revealed a disc problem at L5.  The Veteran indicated to the examining physician that he had experienced pain radiating to both legs.  Physical examination revealed tenderness in the lumbar and paralumbar areas.  The Veteran's thoracolumbar spine had a forward flexion of 105 degrees (considered as 90 degrees as that is the maximum forward flexion specified in the regulations) and combined range of motion of 230 degrees (as calculated by substituting the normal range of motion where the reported range of motion exceeded the maximum range specified in the regulations).  There was no decreased range of motion after repeated testing.  The Veteran's quadriceps and hamstring strength was 5/5 bilaterally.  The physician also recorded goo patellar and Achilles reflexes.  The Veteran's gait was normal and he could raise on his toes, rock back on his heels, and balance on either foot.

X-rays showed some narrowing at the L5-S1disc space and an MRI showed a concentric disc bulge at L3-4 and an asymmetric disc bulge at L5-S1.  Moreover, bilateral lower extremity EMG and nerve conduction study was normal.  The examiner concluded that the Veteran suffered from a lumbar strain with evidence of lumbar disc disease at L3-4 and L5-S1, but without evidence by examination or EMG of radiculopathy (sciatica).

On the basis of this examination, the Veteran was assigned a 10 percent disability rating from the date of his claim that is March 27, 2008.  The Board notes that the rating was based on limited range of motion.  Additionally, there was some localized tenderness that did not result in an abnormal gait.  Otherwise, the examination revealed neither neurological symptoms, nor any incapacitating episodes in the past year.  In short, the examination did not provide any medical evidence to support a rating in excess of 10 percent, and providing evidence against such a claim.

The Board notes, despite findings of some pain, weakness, and limited range of motion, that a subsequent examination of the Veteran in October 2008 as part of a physical therapy consultation supports these findings.  See October 2008 VA Physical Therapy Consult (indicating flexion limited 15% and combined range of motion of at least 120 degrees)

In June 2011, the Veteran underwent an MRI in preparation for lumbar facet injections.  The MRI revealed some mild bilateral neural foraminal stenosis due to disc bulging at L3-L4, mild diffuse disc bulging at L4-L5 without focal disc herniation or stenosis, and diffuse disc bulging at L5-S1 with ligament facet arthropathy that resulted in very mild right neural foraminal narrowing.  The VA physician noted that an epidural steroid injection in February 2010 did not initially help, but that the radicular pain in his lower extremities has disappeared since the injection.  See June 2011 VA Progress Note (recording results of MRI); see also March 2010 VA Pain Medicine Note (recording Veteran's complaint that injection did not relieve pain).  

While the Veteran reported that his lower back pain was aggravated by any kind of activity, he indicated that the pain did not radiate to either lower extremity.  Further, the progress notes reflect that the Veteran did not have any weakness in his lower extremities at that time.

The November 2011 VA examination conducted pursuant to this Board's order of remand revealed that the Veteran no longer reported radicular pain and did not have weakness, but he continued to have persistent low back pain.  There were no objective signs or symptoms of radiculopathy and there were no other indications of neurologic abnormalities.  The VA examiner evaluated the Veteran's range of motion of the thoracolumbar spine and found:  forward flexion of 90 degrees, extension of 30 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 30 degrees, which it is important for the Veteran to understand provides evidence against this claim.   

The examiner also noted there was no objective evidence of painful motion during the testing and, after three repetitions of the range of motion activities, there was no change in the range of motion, providing more evidence against this claim.  The VA examiner also found that there were no additional functional losses or impairments in excursion, strength, speed, coordination, or endurance with repetitive testing.  The VA examiner noted tenderness to palpation in the paraspinal region bilaterally, but no guarding or muscle spasm.  The Veteran walked with a normal gait and had a normal curvature of his spine.  In addition, the VA examiner reported that the Veteran had not had any incapacitating episodes over the past 12 months that required bed rest as prescribed by a physician.  X-rays revealed no significant changes in the spine, providing more objective evidence against this claim.

The range of motion reflected by the November 2011 VA examination does not demonstrate functional limitation so severe as to warrant an evaluation greater than 10 percent.  There is no evidence of flexion of the thoracolumbar spine limited to 60 degrees or less, or a combined range of motion of the thoracolumbar spine limited to 120 degrees or less.  Further, there is no competent evidence of muscle spasm or guarding severe enough to result in abnormal spinal contour.  Additionally, the medical evidence does not show that the Veteran has excess fatigue, weakness, incoordination or any other symptom or sign that results in such additional functional impairment.  38 C.F.R. §§ 4.40 and 4.45 (2012); DeLuca, 8 Vet. App. at 206.  Despite some indication of pain, the VA examiner explicitly found that there was no additional loss in degree of motion after repetitive motion testing.  See Mitchell v. Shinseki, 25 Vet. App. 32, 41-42 (2011) (noting that the Board must consider "the effect of pain on range of motion", but holding that "pain itself does not rise to the level of functional loss").  

The Veteran has made various assertions regarding the extent and nature of his thoracolumbar spine disability.  While the Veteran is competent to report (1) symptoms observable to a layperson (e.g. pain); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay Veteran competent to render opinions regarding complex medical matters.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012).  The Board finds that the medical conclusions of this Veteran, who lacks training in a medical profession and whose opinions address a complex medical subject, are not competent evidence of the medical condition of the Veteran's low back disability with respect to range of motion and the other applicable diagnostic criteria.  Jandreau, 492 F.3d at 1377; see also Stefl v. Nicholson, 21 Vet. App. at 124.  In any event, his statements, which provide the basis for the 10 percent evaluation, are outweighed by the medical evidence of record, which provides highly probative evidence against this claim. 

Thus, the only competent medical evidence of record demonstrates that, at his initial rating in July 2008, the Veteran's thoracolumbar spine disability most closely approximated the criteria for the 10 percent rating.  Additionally, while there has been some mild worsening of his underlying medical condition, his symptoms have not, at any point, more closely approximated the criteria for a 20 percent or higher rating.  See, e.g., November 2011 Report on VA Examination.

There is no evidence in the claims file, nor any assertion by the Veteran, that the Veteran has been bedridden at any time over the relevant appeals period, defined by regulation as doctor-prescribed bed rest.  The November 2011 examiner specifically noted that the Veteran had not experienced any incapacitating episodes over the previous year.  Therefore, the Veteran's service-connected back disability would not warrant a higher rating based on incapacitating episodes under Diagnostic Code 5237-4243. 

The Board has also considered whether a separate evaluation for neurological disability is warranted.  The Board observes that the evidence of record does not contain a diagnosis of lumbar radiculopathy and neither the June 2008 examiner nor the November 2011 VA examiner found neurological symptoms associated with the Veteran's service-connected back condition.  In fact, both examiners noted that the Veteran experienced no sensory or motor impairment of his lower extremities.  Both also reported, and his treatment records consistently document, that the Veteran did not suffer from bowel or bladder impairment.  Thus, the Board finds that a separate evaluation for neurological disability is not warranted.

Based on the discussion above, the Board finds that the competent medical evidence demonstrates that an evaluation in excess of 10 percent is not warranted on a schedular basis at any point during the appeal period.  The Veteran's thoracolumbar range of motion does not warrant a higher rating and there is no competent evidence of ankylosis, incapacitating episodes or neurological manifestations.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation, on a schedular basis, for the Veteran's low back disability, specifically lumbar strain with lumbar degenerative disc disease at L3-4 and L5-S1, and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Finally, in exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, in order to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating.  Id.  

In the present case, the Veteran's symptoms include pain and limited motion.  The schedular criteria specifically contemplate limitation of motion, guarding, muscle spasms, and any associated neurological symptoms.  Case law, which was applied above, contemplates the effect of pain, weakness, and flare-ups.  As all of the Veteran's symptoms are contemplated by the applicable Diagnostic Code, the Board finds the schedular criteria are adequate.  Therefore, referral for the assignment of an extraschedular disability rating is not warranted. 

Consideration of TDIU

Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447   (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case, the record is negative for evidence that the Veteran is unemployable.  In fact, the record indicates the Veteran has been gainfully employed at all relevant times.  See, e.g., May 2009 Primary Care Note (noting Veteran does "a lot of lifting" at work which exacerbates pain); October 2011 VA Telephone Contact Report (recording Veteran stated he had just started a new job); May 2012 VA Telephone Contact Report Addendum ("spoke with Vet wife who stated he has been working long hours").  Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability.

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

For increased-rating claims, section 5103(a) requires the Secretary to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009).  The notice should also inform the Veteran with respect to how disability ratings and effective dates are assigned.  Id.  

In the instant case, notice was provided to the Veteran in March 2008, prior to the initial adjudication of his claim in July 2008.  The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.

In any event, with respect to increased initial evaluation claims on appeal, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been proven, rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473, 493 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 136 (2008).  There has been no allegation of such error in this case.  

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).

VA satisfied its duty to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated with the claims file the Veteran's service treatment records, VA treatment records, and private medical records.  The Veteran has not identified any treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

VA also satisfied its duty to obtain a medical examination.  In June 2008 and then again in November 2011, VA provided the Veteran medical examinations with respect to the status of his thoracolumbar spine disability.  The examinations are adequate as the examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to entitlement to an increased rating for a right ankle disability is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

ORDER

An initial evaluation in excess of 10 percent for lumbar strain with lumbar degenerative disc disease at L3-4 and L5-S1 is denied.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs