Citation Nr: 18155366 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-09 336 DATE: December 4, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative changes with strain, lumbar spine is denied. FINDING OF FACT Degenerative changes with strain, lumbar spine has been manifest by forward flexion of the thoracolumbar spine better than 30 degrees. There has been no ankylosis of the spine. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for degenerative changes with strain, lumbar spine are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1999 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his hearing request in an October 2018 correspondence. 1. Entitlement to a disability rating in excess of 20 percent for degenerative changes with strain, lumbar spine. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56. Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s degenerative changes with strain, lumbar spine is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a. Degenerative arthritis of the spine is rated using the General Rating Formula for Diseases and Injuries of the Spine. It was rated 10 percent from May 2006 and 20 percent as of June 2016. The Veteran contends that his service-connected lumbar spine disability is more severe than his current evaluation. Under the General Formula, 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, is rated 10 percent disabling. 38 C.F.R. § 4.71a. 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, is rated 20 percent disabling. Id. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, is rated 40 percent disabling. Id. A September 2018 VA examination confirmed the results of earlier medical opinions. The VA examiner found that the Veteran’s thoracolumbar spine had a forward flexion of 70 degrees and a combined range of motion for the thoracolumbar spine of 210 degrees. The examiner found no evidence of ankylosis, additional pain, functional loss, or functional impairment of the thoracolumbar spine. The Veteran has not offered any lay evidence since a statement in his July 2011 Notice of Disagreement, nor has the Veteran submitted any private medical opinions supporting his claim. The Veteran in requesting a review of his 20 percent rating asked that it be considered according to the September 2018 exam. Because he has not presented any other evidence in support of his claim that might offer an alternative medical opinion, and therefore the Board is forced to rely solely on the VA examinations. The current evaluation contemplates pain on motion. In addition, it is consistent with remaining forward flexion better than 30 degrees. Here, there is no objective or subjective evidence that flexion is limited to 30 degrees or less due to any factor. Because the range of motion in the Veteran’s thoracolumbar spine greater than the limitations set out in the General Rating, and because there is a lack of any kind of ankylosis, the Veteran’s claim for a rating in excess of 20 percent is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.W. Strike, Associate Counsel