Citation Nr: 1736668	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-26 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to a rating in excess of 10 percent prior to May 23, 2014, and in excess of 20 percent on and thereafter for the service-connected thoracolumbar spine strain with degenerative changes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel





INTRODUCTION

The Veteran had active duty from May 2000 to June 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied entitlement to a rating in excess of 10 percent for the Veteran's service connected thoracolumbar spine disability. In a subsequent December 2014 rating decision, the RO increased the rating for the Veteran's thoracolumbar spine disability to 20 percent disabling, effective May 23, 2014. 

In the Veteran's September 2012 substantive appeal, he requested a hearing before a Veterans Law Judge. In June 2016, the RO sent a letter to the Veteran's address of record informing him that his Board hearing was scheduled for July 20, 2016. The Veteran failed to appear at the hearing. Neither the Veteran nor his representative has requested that the appeal should be remanded to re-schedule the Veteran for his Board hearing.  Thus, the Board will proceed with adjudication of the issues. 38 C.F.R. § 20.704(d).

In its January 2017 decision, the Board remanded this appeal for further development, specifically to afford the Veteran a VA examination. The Veteran failed to appear at the scheduled examination and has not given good cause for his failure to appear. Therefore, as discussed in greater detail below, the Board finds there was substantial compliance with the January 2016 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The RO scheduled the Veteran for an examination, and VA readjudicated the claim based on the evidence in the record. Thus, VA substantially complied with the previous remand directives.


FINDINGS OF FACT

1. Prior to May 23, 2014, the Veteran's thoracolumbar spine strain with degenerative changes was manifested by pain, forward flexion of 70 degrees, 70 degrees combined rotation, and with no thoracolumbar ankylosis.

2. From May 23, 2014, the Veteran's thoracolumbar spine strain with degenerative changes was manifested by pain and forward flexion of 40 degrees with no thoracolumbar ankylosis.


CONCLUSIONS OF LAW

1. Prior to May 23, 2014, the criteria for a rating in excess of 10 percent for thoracolumbar spine strain with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2016). 

2. Since May 23, 2014, the criteria for a rating in excess of 20 percent for thoracolumbar spine strain with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and to Assist

VA has a 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The duty to notify has been met. See VA correspondence dated April 2010. The Veteran has not alleged prejudice with regard to notice. In light of the foregoing, nothing more is required.

Regarding the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The record includes available VA treatment and examination reports, statements in support of the claim, and private medical treatment records. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. The evidence of record is sufficient for the Board's review. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See U.S.C.A. § 5103A; 38 C.F.R. §3.159 (2016). 

As noted above, the Board remanded this issue to the RO in January 2017 to schedule the Veteran for a new VA examination to determine the severity of the Veteran's thoracolumbar spine disability. The Veteran was scheduled for a new VA examination but did not appear for examination, and there is no indication from the record that notice of the scheduled examination was not sent to him at his last known address. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Further, he has not asserted that he did not receive notice of the scheduled examination. 

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Title 38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a). 

Because there are no statements offered by the Veteran or his representative as to his reason for failing to report to the scheduled examination, the Board finds that he has not provided good cause and will therefore decide the Veteran's claim on the evidence of record. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546   (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board emphasizes that the duty to assist and provide the Veteran with a VA examination is a two-way street, and due to his failure attend the scheduled VA examination or provide a date for which he is able to attend to schedule VA examination, there is no further duty to provide any more VA examinations relating to this claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Neither the Veteran nor his representative has raised any issues with the VA examination given to the Veteran, the duty to notify, or the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate the claim would not cause any prejudice to the appellant.

II. Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2016). 

In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2016). Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between joint motion pain as opposed to pain that actually places further limitation of the particular range of motion.

Disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The examination upon which ratings are based must 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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 (2016).

Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. §§ 4.40, 4.45, 4.59 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996).

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2016).

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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999).

Here, the Veteran contends that his current thoracolumbar spine strain with degenerative changes disability is more severe than represented by the current rating of 10 percent disabling prior to May 23, 2014 and the 20 percent disabling from May 23, 2014. He further contends that his thoracolumbar back disability is more severe than it is currently rated because it requires increased use of his TENS unit as a result of continued back spasms, increased physical therapy, and increased drug treatment. He has also submitted statements from R.C. and S.L. who both assert that the Veteran's thoracolumbar back disability causes him great pain.

The Veteran's thoracolumbar spine disability is evaluated under Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula, 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, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; the combined range of motion of the cervical spine not greater than 170 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 30 percent evaluation is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

For VA compensation purposes, normal range of motion of the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V.

Moreover, 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 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; 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5).  
Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted 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 evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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).

Prior to May 23, 2014, the Veteran has not been shown to have 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 of greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait to abnormal contour; or, favorable ankylosis of the entire thoracolumbar spine. During an August 2010 VA examination, the Veteran demonstrated forward flexion to 70 degrees with no muscle spasm. The examiner noted curvature in the spine within normal limits with no gross abnormalities. The examiner also noted that there was tenderness on the left side of the spine and mild tenderness on the right side of the spine. The examiner further noted that there were no incapacitating episodes as a result of the Veteran's thoracolumbar spine disability. Finally, the examiner made no finding of ankylosis of the spine.

Since May 23, 2014, the Veteran has not been shown to have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. During a May 2014 VA examination, the Veteran demonstrated forward flexion to 40 degrees with some tenderness beginning at 40 degrees. After repetitive motion testing, the Veteran was shown to have forward flexion to 40 degrees. The examiner noted that he would expect an additional loss of 5 degrees of flexion and mild overall strength, coordination, and fatigue due to repetitive movement and flare-ups due to pain, but he noted that the Veteran did not have additional limitation in range of motion following repetitive use. Further, the examiner expressly noted that there was no ankylosis of the spine, intervertebral disc syndrome, or incapacitating episodes as a result of the Veteran's thoracolumbar back disability.

Private medical treatment records as well as VA treatment records reflect the Veteran's continual complaints of back pain as well as treatment for his thoracolumbar back disability.  However, the records are silent as to flexion and range of motion measurements for his back. The records are also silent as to incapacitating episodes resulting from the Veteran's thoracolumbar back disability.     

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 10 percent prior to May 23, 2014 for thoracolumbar spine strain with degenerative changes. The Board also finds that the Veteran is not entitled to a rating in excess of 20 percent since May 23, 2014 for his thoracolumbar spine disability. 

In addition, there is no indication that the Veteran has had any incapacitating episodes.  As previously noted, 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, Diagnostic Code 5243, Note (1). In fact, the evidence of record shows that the Veteran has not been prescribed bed rest by a physician at any point during the appeal. Moreover, the May 2014 VA examiner stated that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. As such, to the extent these criteria are for application, the Veteran has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board finds the opinions of the August 2010 and May 2014 VA examiners highly credible, probative, and persuasive against a higher rating because the opinions are based on the Veteran's pertinent medical history as well as the results of a physical examination, and both give a thorough, well-explained rationale for all opinions; the report provides an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran is competent to report certain obvious symptoms of his thoracolumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the VA medical professional who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). 

The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran's current thoracolumbar spine disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula; thus, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned.

The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service connected thoracolumbar spine disability. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran has previously been granted service connection for radiculopathy of the left sciatic nerve associated with his service connected thoracolumbar spine strain with degenerative changes.

During the August 2010 VA examination, the VA examiner noted that reflex examinations of the lower extremities were normal. During the May 2014 VA examination, the VA examiner noted that the Veteran had no neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems or pathologic reflexes. In addition, the May 2014 VA examiner noted that muscle strength testing of the lower extremities was normal; there was no atrophy; reflex and sensory examinations of the lower extremities were normal; straight leg raise testing was negative bilaterally. Thus, the Board concludes that the evidence weighs against a finding that the Veteran suffers from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 10 percent for the Veteran's thoracolumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher, prior to May 23, 2014 and 20 percent rating, and no higher, since May 23, 2014. In this regard, the Board observes that the Veteran complained of pain during the August 2010 and May 2014 VA examinations. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned disability evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

Thus, the Board concludes that the Veteran's thoracolumbar spine strain with degenerative changes has not more closely approximated the criteria for a rating in excess of 10 percent prior to May 23, 2014 and has not more closely approximated the criteria for a rating in excess of 20 percent since May 23, 2014. Thus, a rating in excess of 10 percent prior to May 23, 2014 and a rating in excess of 20 percent for the Veteran's thoracolumbar back disability is not warranted, there is no basis for staged rating of the Veteran's disability, and the preponderance of the evidence is against a higher rating for the thoracolumbar back disability prior to May 23, 2014 and since May 23, 2014. Therefore, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3.

As a final matter, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required.


ORDER

Entitlement to a rating in excess of 10 percent prior to May 23, 2014 for thoracolumbar spine strain with degenerative changes is denied.

Entitlement to a rating in excess of 20 percent on and from May 23, 2014 for thoracolumbar spine strain with degenerative changes is denied.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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