Citation Nr: 1603244 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 12-21 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial evaluation for degenerative joint disease of the thoracic spine with low back pain/strain in excess of 20 percent prior to September 25, 2010, and of 10 percent from that date. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active duty for training from March 1973 to September 1973 and had active service from January 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2015, the Board remanded this case. FINDINGS OF FACT 1. Prior to September 25, 2010, the Veteran's degenerative joint disease of the thoracic spine with low back pain/strain was productive of forward flexion of the spine limited to 50 degrees, but not to 30 degrees or less; there was no ankylosis, no intervertebral disc syndrome, no doctor prescribed bed rest, and no neurological symptoms related to his degenerative joint disease of the thoracic spine with low back pain/strain. 2. From September 25, 2010, the Veteran's degenerative joint disease of the thoracic spine with low back pain/strain was productive of flexion limited to 70 degrees at worse, but not limited to greater than 30 degree and not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees; the Veteran did not have guarding severe enough to result in an abnormal gait or abnormal spinal contour; there was no intervertebral disc syndrome, no doctor prescribed bed rest, and no neurological symptoms related to his degenerative joint disease of the thoracic spine with low back pain/strain. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for degenerative joint disease of the thoracic spine with low back pain/strain prior to September 25, 2010 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5237-5243 (2015). 2. The criteria for a rating in excess of 10 percent for degenerative joint disease of the thoracic spine with low back pain/strain from September 25, 2010 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5237-5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, 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 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in March and April 2009 letters prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regards to the claim for a higher initial rating for the low back disability, the Veteran is challenging the initial evaluation assigned following the grant of service connection for this disability. In Dingess the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the claimant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent the Veteran an SOC that contained, in pertinent part, the criteria for establishing entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings 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 (1995). Before proceeding with its analysis of the Veteran's claims, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the ratings are staged. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. 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, No. 09-2169 (U.S. Vet. App. Aug. 23, 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, in Mitchell, the 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. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under the General Rating Formula as applicable to the Veteran's spine disability, a 10 percent rating is warranted 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. There may also be muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, if 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 requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or 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. These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3) states that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors note the result of the disease or injury of the spine, the range of motion of the spine in particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) indicates that each range of motion measurement should be rounded to the nearest 5. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of the limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that VA should separately evaluate disability of the thoracolumbar and cervical spine segments, except whether there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the criteria governing disabilities of the spine, intervertebral disc syndrome is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. This formula provides a rating of 20 percent for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. See 38 C.F.R. § 4.71a, Note (1). In July 2009, the Veteran was afforded a VA examination. At that time, he stated that he had back pain which had become chronically worse over the last year or two. Currently, the pain was mainly in his lower back. He stated it rarely would radiate down the legs and was located mainly in the center of the low back. He denied numbness in the legs at this time. He stated that the pain was at a level 10 out of 10 pretty much every day, but seemed to be worse with prolonged standing, walking, or lying down. He denied flare-ups, but rather had increased pain with repetitive activity. He stated he would walk for about 15 minutes before his back really started to hurt him. He used a cane and an occasional crutch as well as an occasional brace. He had had physical therapy remotely, but none recently. He had not had doctor-ordered bed rest in the last 12 months. There were no bladder or bowel changes or fever or chills. He stated that currently his back pain affected his daily activities as well as his ability work in that he had pain with prolonged standing, walking, or any sort of lifting of objects. On examination, his gait was mildly antalgic secondary to a broken foot which he wore a boot. His back did not show tenderness to palpation. He exhibited forward flexion from 0 degrees to 50 degrees; extension from 0 degrees to 20 degrees; right and left lateral bending from 0 degrees to 20 degrees; right and left lateral rotation from 0 degrees to 20 degrees. He had pain throughout each of these arcs of motion and his range of motion was limited secondary to pain. His range of motion was both active and passive. There was no alteration in pain or arc of motion with repetitions (3). He had 5/5 strength in all areas. He had intact sensation with light touch all dermatomes in all four extremities. He had a negative straight leg raise bilaterally lower extremities on both sitting and supine. He had a negative Babinski bilaterally. There was no clonus bilaterally and 2+ patellar and Achilles reflexes bilaterally. X-rays of thoracic spine showed mild diffuse degenerative joint disease of the lumbar spine normal. A magnetic resonance imaging (MRI) of lumbar spine from September 2008 was normal. The diagnoses were age-appropriate degenerative joint disease of the thoracic spine, mild; chronic low back pain strain with uncertain organic etiology. To address the DeLuca provisions, there was pain on range of motion testing at this time. The examiner indicated that it was conceivable that pain could further limit function as described particularly after being on his feet all day; however, it was not feasible to attempt to express any of this in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. November 2009 VA records documented complaints of back and leg pain. The Veteran was noted to have muscle spasm. On September 25, 2010, the Veteran was afforded another VA examination. At that time, the Veteran reported that his low back pain was a 7 out of 10, but flared to a 10 out of 10 on a daily basis. He said that he also had radiating pain down both of his legs with weakness in both of his legs and numbness in both of his feet. He did not use a cane or a brace. He was able to walk about 15 minutes without difficulty. The pain affected his activities of daily living as well as occupational activities although he was currently unemployed. He had never been on bed rest for his back. Physical examination revealed that the lumbar spine had midline tenderness at L1-L5 with paraspinal muscular tenderness from T7-L5. He had flexion from 0-70 degrees with pain from 0-70 degrees. He had extension from 0-10 degrees with pain from 0-10 degrees. Repetition did not change his range of motion or his pain. He had rotation of the left 0-20 degrees with pain from 0- 20 degrees. He had rotation to the right from 0-20 degrees with pain from 0-20 degrees. He had lateral bending 0-20 degree with pain from 0-20, both on the left and right sides. The pain did not change after repetition. He had intact sensation to light touch with diminished sensation over the L5-S1 dermatomes bilaterally. There was no clonus and downgoing Babinski's bilaterally. X-rays of the lumbar spine showed no significant point space narrowing and there was no significant osteophyte formation or facet hypertrophy. The diagnosis was lumbar stenosis. As to the DeLuca provisions, there was pain on range of motion testing as detailed above. It was conceivable that excessive bending stooping and lifting could exacerbate this pain, but it was not conceivable to discuss in terms of limitation of motion. In July 2015, the Board remanded this case for the Veteran to be examined to assess whether he has neurological impairment due to his service-connected back disability. In November 2015, the Veteran was afforded a VA examination. Range of motion testing revealed forward flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Pain was noted on testing, but it did not impair function. There was no additional loss of function or range of motion after three repetitions. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm. He had localized tenderness which did not result in abnormal gait or abnormal spinal contour. Strength and reflex testing were normal. Straight leg raising was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. There were no other neurologic abnormalities or findings related to the thoracolumbar spine (back) condition, such as bowel or bladder problems/pathologic reflexes. The Veteran did not have intervertebral disc disease. The Veteran did not use any assistive devices. The Veteran had arthritis. The Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The Veteran did not have any other significant diagnostic test findings and/or results. The back disability did not impact the Veteran's ability to work. The examiner indicated that it was less than 50 percent probability that the Veteran's thoracic and low back pain condition is a result of his in-service activities. This was supported by his history and physical examination, which was more consistent with a chronic disease process known as degenerative disc disease. This disease was noted to be common in this Veteran's age cohort and not associated with prior trauma such as a low back strain. Prior to September 25, 2010 Prior to September 25, 2010, the Veteran has been assigned a 20 percent rating for his low back disability. In order for a higher rating to be assigned, the evidence must show that forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Veteran's forward flexion of the spine was limited to 50 degrees even considering the DeLuca criteria, but not to 30 degrees or less and he did not have ankylosis. Also, the Veteran is not service-connected for intervertebral disc syndrome nor did he have doctor prescribed bed rest. The Veteran had no neurological symptoms related to his degenerative joint disease of the thoracic spine with low back pain/strain. Accordingly, the criteria for a higher rating are not met. From September 25, 2010 The Veteran has been assigned a 10 percent rating for his low back disability beginning from September 25, 2010, the date of the VA examination. In order for a higher rating to be warranted, the evidence must show that forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, if 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. The Veteran's low back disorder does not meet these criteria. His flexion was limited to 70 degrees at worse, and to 80 on the most recent examination. Although he has reported muscle spasm, there was none on examination and he did not have guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Veteran is not service-connected for intervertebral disc syndrome nor did he have doctor prescribed bed rest. The Veteran had no neurological symptoms related to his degenerative joint disease of the thoracic spine with low back pain/strain. Accordingly, the criteria for a higher rating are not met. Conclusion In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's 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(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, a preponderance of the evidence is against a rating in excess of 20 percent prior to September 25, 2010, and in excess of 10 percent from that date. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's degenerative joint disease of the thoracic spine with low back pain/strain are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. There have not been any hospitalizations or marked interference with employment. In fact, the most recent examination showed no industrial impairment. Therefore, referral for consideration of an extraschedular rating is not warranted. (Continued on the next page) ORDER Entitlement to an initial evaluation for degenerative joint disease of the thoracic spine with low back pain/strain in excess of 20 percent prior to September 25, 2010, is denied. Entitlement to an evaluation for degenerative joint disease of the thoracic spine with low back pain/strain in excess of 10 percent from September 25, 2010, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs