Citation Nr: 0908705 Decision Date: 03/09/09 Archive Date: 03/17/09 DOCKET NO. 99-04 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating (greater than zero percent) for an upper back or thoracic strain, prior to September 26, 2003. 2. Entitlement to increased evaluation for an upper back or thoracic strain, evaluated at 20 percent, as of and after September 26, 2003. REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESS AT HEARING ON APPEAL C.N.B., M.D. ATTORNEY FOR THE BOARD Todd M. Gillett, Associate Counsel INTRODUCTION The Veteran had active service from September 1972 to September 1976, and from February 1979 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the Veteran's claim for a rating in excess of 10 percent for an upper back and neck strain with narrowing of the C-5 disc space. This matter has previously been before the Board for adjudication. In a December 2005 decision, the Board increased the rating for the veteran's cervical strain with disc space narrowing to 40 percent. The Board also concluded that the Veteran's thoracic strain warranted a separate rating; that issue was remanded to the RO to determine if a compensable rating is warranted. After the RO assigned a zero percent rating for the upper back strain, the Board issued another decision in March 2007, which, in pertinent part, denied the Veteran's appeal for entitlement to a compensable disability rating for his upper back strain, prior to September 26, 2003; and granted entitlement to a 20 percent rating, but no more than 20 percent, for the upper back strain, from September 26, 2003. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2008 Order, the Court granted a September 2008 Joint Order for Partial Remand, agreed upon by all parties. Under the terms of the joint order, the portions of the Board's decision increasing the Veteran's disability rating for the upper back strain to 20 percent, effective September 26, 2003, were not disturbed. However, the portions of the Board's decision denying the Veteran a compensable rating for his upper back strain, prior to September 26, 2003, and denying an evaluation greater than 20 percent for the same disorder, as of and after September 26, 2003 were vacated and remanded due to the Board's failure to discuss the possibility of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (2008) in its March 2007 decision. While the extraschedular question was the only reason cited for the vacate, the Court Order clearly requires the Board to readjudicate the claim for a compensable rating and a rating in excess of 20 percent for the upper back strain during the periods of time noted above on schedular and extraschedular bases. In addition to the decisions noted above, in March 2007 determination, the Board remanded the Veteran's claim for an entitlement to a total (100 percent) disability rating based on individual unemployability (TDIU) to the RO for further development. In a May 2008 rating decision, the RO granted the Veteran's claim, finding the Veteran totally disabled effective May 25, 2004. As this determination acts as a total grant of the benefit sought on appeal in this matter and the record does not indicate that the Veteran has disagreed with the effective date assigned, an issue relating to the TDIU (i.e., claim for an earlier effective date) is not in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran's representative and medical expert were afforded a Central Office Hearing before the undersigned Veterans Law Judge in September 2005. A transcript is associated with the claims file. FINDINGS OF FACT 1. Prior to September 26, 2003, the Veteran's service- connected upper back or thoracic strain was manifested by pain, tenderness and no more than slight limitation of motion of the thoracic spine; there is no X-ray evidence of arthritis or disc disease of the thoracic spine; the Veteran's back disorder did not present such an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. 2. Since September 26, 2003, the Veteran's service-connected upper back or thoracic strain has been manifested by pain, tenderness and limitation of forward flexion of the thoracolumbar flexion to 60 degrees or no more than moderate limitation of motion; an X-ray examination of the thoracic spine was normal with no findings relating to arthritis or disc disease; the Veteran's back disorder did not present such an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for an upper back or thoracic strain prior to September 26, 2003, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 015107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5291 (prior to September 26, 2003). 2. The criteria for a 20 percent rating for an upper back or thoracic strain, but no more than 20 percent, from September 26, 2003, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2003); Diagnostic Code 5237 (2008); VAOPGCPREC 7-2003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes the VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, the VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. These notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability; a connection between the Veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). While this was not accomplished in this case, any notification deficiency was corrected by dispatch of a remedial VCAA letter after the Board's December 2005 remand. The VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed the government's duties to assist him. In a VCAA letter, the Veteran was notified of the information and evidence needed to substantiate and complete his claim. The Veteran was specifically informed as to what evidence he was to provide and to what evidence the VA would attempt to obtain on his behalf. He was also notified of the need to give the VA any evidence pertaining to his claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005); Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini, the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Veteran was provided a VCAA notice letter, which, as noted above, notified the Veteran of the evidence that is necessary to substantiate the claim, the evidence or information the VA will seek to provide, and the information or evidence he is expected to provide. With respect to the Dingess requirements, the Veteran was notified of the evidence necessary to establish an increase in disability rating and the effective date of award should an increase be granted for his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to timing of notice of the Dingess requirements, the Board finds no prejudice to the Veteran in proceeding with the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where Board addresses question not addressed by agency of original jurisdiction, Board must consider whether Veteran has been prejudiced thereby). In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the Veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. It is also pertinent to note that the evidence does not show, nor does the Veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. That is, there has been no plausible showing of how the essential fairness of the adjudication was affected. See Mayfield v. Nicholson, 19 Vet. App. 103, 128, 129 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (due process concerns with respect to VCAA notice must be pled with specificity). The VCAA places an enhanced duty on VA to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the RO has obtained all existing medical records identified by the Veteran. Comprehensive examinations to evaluate the disability at issue were conducted, which resulted in findings that are adequate for rating purposes. There is no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327 (2008). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Legal Criteria Disability ratings are determined by applying criteria set forth in the VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. In determining the disability evaluation, the VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As noted in the introduction above, pursuant to a Board decision during this appeal, the RO rated the Veteran's upper back strain separately and assigned a zero percent rating, which was subsequently increased to 20 percent by another Board decision; however, the effective date for the 20 percent rating was not the date of receipt of the claim for an increased rating in May 1997; thus the issue before the Board is whether a compensable rating is warranted prior to September 26, 2003 and a rating of 20 percent thereafter. Given this procedural history, no distinction between claims stemming from an original rating versus increased rating is applicable here as the thoracic strain had been a part of the veteran's upper back and neck disabilities. That is, staged ratings under Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) are not applicable. However, there is no practical difference given the current state of the law. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In addition, one Diagnostic Code may be more appropriate than another based upon considerations such as the individual's relevant medical history, his diagnosis, or his associated demonstrative symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board notes at the outset that the criteria for rating diseases and disabilities of the spine were amended twice during the pendency of this appeal. In September 2002, the criteria for rating disc disease or intervertebral disc syndrome were amended. As noted above, however, service connection is not in effect for disc disease of the thoracic spine. Accordingly, 38 C.F.R. § 4.71a, Diagnostic Code 5293, to include as amended on September 23, 2002, and 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect since September 26, 2003) are not applicable. The criteria for rating diseases and disabilities of the spine were amended again on September 26, 2003, which, as explained below, are effective but only from the date they went into effect. In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent that it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). In VAOPGCPREC 7- 2003, the General Counsel held that Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that when a statute or regulation changes while a claim is pending before the VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. The General Counsel held that the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. The General Counsel indicated that pursuant to Supreme Court and Federal Circuit precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before the VA, the VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, the VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, the VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, the VA ordinarily must apply the new provision. VAOPGCPREC 7-2003. In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, the VA must apply the new provisions from their effective date. The Board also observes that 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 portrays 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 visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In viewing pre-revision criteria, the Board finds that Diagnostic Code 5291, which addresses limited range of motion in the dorsal spine, is applicable. See 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2003). Under this code, slight limitation of motion of the dorsal (thoracic) spine warranted a non-compensable (zero percent) evaluation; moderate limitation of motion warranted an evaluation of 10 percent; with severe limitation of motion also rated as 10 percent disabling. Post-revision regulatory language provides that spine disorders are to be rated by applying the General Rating Formula for Rating Diseases and Injuries of the Spine. In this regard, it is noted that no specific provision pertaining to limitation of motion or thoracic strain exists under the amended criteria. However, the rating criteria currently in effect recognize that the thoracic and lumbar segments move in unison. See 38 C.F.R. § 4.71a, Plate V. Therefore, it is appropriate to rate the Veteran's disability under Diagnostic Code 5237. Under this code, a 50 percent evaluation is assigned for when there is unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the thoracolumbar spine; a 20 percent evaluation is assigned when 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 with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and a 10 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2008). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Factual Background The Veteran filed his current claim for an increased evaluation for service-connected upper back strain in February 1997. At the time of his application, the disorder was rated as a combined service-connected neck and upper back disorder. In a December 2005 decision, the Board granted an increased rating from 30 to 40 percent for the Veteran's neck or cervical spine disability, now rated as residuals of a neck strain with disc space narrowing at C-5, which was rated, in part, under Diagnostic Code 5293. In the Board's remand at that time, the RO was requested to confirm that service connection was in effect for the Veteran's upper back strain and assign a separate rating. The RO, in an August 2006 rating decision, confirmed that the Veteran was service- connected for an upper back disability or thoracic strain, and that such disability was rated zero percent. In a March 2007 rating decision, the Board denied the Veteran's claim for entitlement to a compensable disability rating for an upper back strain, prior to September 26, 2003; and granted entitlement to a 20 percent rating, but no more than 20 percent, for the upper back strain, from September 26, 2003. At this time, the Veteran essentially contends that his condition is that his thoracic strain is symptomatic and productive of functional impairment, which warrants higher ratings than those already assigned. He also asserts that higher ratings are warranted on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) (2008). Since filing his claim for an increased rating for his thoracic strain, the Veteran has been afforded multiple VA orthopedic examinations. The earliest of these examinations occurred in July 1997, and that evaluation was negative for any pertinent abnormal objective findings except for thoracic tenderness upon palpation. In the examination report, the Veteran reported that he had numbness in his hands. However, he did not indicate that this was due to a thoracic or upper back disorder, or that said disorder interfered with his employment. Physical evaluation was negative for any pertinent abnormal objective findings except for thoracic tenderness upon palpation. The next VA spine examination occurred in September 1999. During an interview, the Veteran reported that he had pain in the area between his shoulder blades. He also stated that he quit his welding job because he began to drop things. In the associated report, the Veteran was found to exhibit sensitivity to a "light tapping pressure" about the shoulder girdle and in the upper dorsal (thoracic) area. While a degenerative disc was found in the Veteran's cervical spine, no mention was made of any degenerative disc or joint disease in the thoracic spine. Also in September 1999, the Veteran was followed by VA, with a treatment note indicating chronic neck pain with a radiation of the pain into the upper back region. In June 2003, the Veteran was afforded another VA spine examination. In the associated report, the Veteran was found to have thoracic spine pain and muscle pain in the right rhomboid area of the chest. The examiner, however, specifically noted only "minimal symptoms [and] minimal disability." Flexion and extension of the thoracic spine were found to be normal. Lateral movement of the thoracic spine caused the Veteran left rhomboid pain, and right rotary movement was to 45 degrees with complaints of right rhomboid pain. No muscle weakness, fatigability, or instability was reported, but tenderness was again noted upon palpation of the upper three thoracic vertebrae. In May 2004, the Veteran submitted a private medical opinion which was based on a thorough review of the claims file. In this opinion, the reviewing private physician, a radiologist, primarily addressed the Veteran's cervical condition which was, at the time, rated as one disability with the thoracic strain. (As noted above, the Veteran's service connected cervical spine disability is separately rated at 40 percent and is no longer in appellate status.) The physician reported that the Veteran's neck and upper back strain should be rated as 60 percent disabling, but the physician did not report any clinical findings to support such a conclusion, other than a reference to a September 1999 clinical finding, when the Veteran had significant neck pain radiating to his upper back. In his opinion, the examiner stated that the Veteran's cervical spine problems (pain, weakness, and tingling) made it difficult, if not impossible, for him to maintain gainful employment. (As noted above, a subsequent RO decision considered all of the Veteran's service connected disabilities and granted a total (100 percent) rating based upon individuals unemployability.) In August 2004, the Veteran was afforded another VA orthopedic examination. He reportedly stated that he had to stop working in his position as a welder due to his tendency to drop things. He stated that he had not worked in ten years. Range of motion of the thoracolumbar spine was reported as follows: forward flexion to 60 degrees, extension to 20 degrees, flexion and rotation to 20 degrees, with pain noted during all movement. No fatigue, weakness, or incoorodination were noted. In September 2005, the private physician who authored the May 2004 report, Dr. B. (initials used to protect privacy), gave testimony on behalf of the Veteran at a Central Office Hearing. The physician stated that there "may" be tenderness in the T1-3 areas, but when asked if degenerative disc disease or arthritis was present in the thoracic spine, he responded that he could not answer without a review of the examinations of record. The clinician added that, in his mind, "what's really going on here is cervical spine disease that can radiate to certain levels." Dr. B. also noted his belief that the Veteran would not be able to work in his job as a mechanic due to his tendency to drop things. (Hearing Transcript at 15.) However, although the examiner indicated his belief that the Veteran's inability to work was due to his service-connected disorders, he did not state that it was the upper or thoracic back strain, by itself, caused marked interference with the Veteran's employment. (Hearing Transcript at 16.) After the Board's December 2005 remand, the Veteran was afforded a VA orthopedic examination in July 2006. The examiner noted that the Veteran was no longer employed as a welder, and, therefore, the disorders did not have a current effect on his occupation. In the associated report, the Veteran was found to exhibit some pain in the upper thoracic area. Low back range of motion was found to be zero to 60 degrees forward flexion, zero to 20 degrees extension, lateral flexion and rotation to 20 degrees, and pain was noted at the extremes of all range of motion tests. The Veteran was diagnosed as having upper thoracic spine myofascial disorder due to degenerative disc disease and degenerative joint disease of the cervical spine. There was no indication of arthritis or disc disease of the thoracic spine. An August 2008 VA examination was performed to determine the Veteran's individual unemployability. The Veteran reportedly stated that he had pain that radiated from his cervical spine to his upper thoracic spine. He indicated that he felt this pain daily, but not constantly. He noted that he would feel numbness and pain in his hands occasionally, making it difficult to grip objects. He stated that he did not use any assistive devices, and that he did not experience any additional limitations with flare-ups. He noted that his service-connected disorders interfered with his daily activities, especially with quick movements, up and down movements, or bending forward. Low back range of motion was found to be zero to 85 degrees forward flexion with pain at L4-L5, zero to 30 degrees extension with pain at L3-L4-L5, zero to 25 degrees left and right lateral flexion and rotation with pain at L4-L5. The Board notes that the examiner did not indicate at what point the noted pain began during motion testing. X-rays of the thoracic sprain were negative. The diagnosis, in relevant part, was a thoracic spine sprain. In conclusion, the examiner stated that the Veteran could not do manual labor because of his C-spine, lumbar spine disc disease, and bilateral foot pain. Analysis Under the criteria in effect prior to September 26, 2003, the Board notes that slight limitation of motion of the thoracic spine warrants a zero percent rating, whereas moderate limitation of motion is rated 10 percent. The medical evidence fails to show amore than slight limitation of motion of the thoracic spine and there is no X-ray evidence of arthritis or disc disease. The clinical evidence, to include reports of VA examinations, show only minimal abnormal objective findings, such as pain and tenderness, which does not support a compensable rating absent X-ray evidence of arthritis. Radiographic examinations have failed to show any abnormality of the thoracic spine, to include arthritis. As such, the evidence does not indicate that the Veteran's upper back disorder was manifested by a moderate limitation of motion, required for a compensable (10 percent) rating under Diagnostic Code 5291. The Board has considered whether there is medical evidence of additional limitation of motion of the thoracic spine due to pain, weakness, fatigue, incoordination, or flare-ups of such symptoms to a degree that would support a compensable rating prior to September 26, 2003. 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra. The July 1997 and June 2003 examinations showed normal range of motion, aside from pain at 45 degrees on right lateral movement of the spine (not flexion) upon the latter examination. The latter examiner specifically noted that there was no muscle weakness, fatigability or instability. The preponderance of the evidence is against a finding of additional limitation of motion of the thoracic spine to a degree that would support a compensable rating under Code 5191, nor is there any medical evidence of such additional limitation of motion due to weakness, fatigue, incoordination or any other symptom. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The VA examination on August 26, 2004, however, did show limitation of forward flexion to 60 degrees, which supports a 10 percent rating under Code 5291 as it approximates moderate limitation of motion but, given the date of the evaluation, not before September 26, 2003. As explained below, since this examination and a subsequent evaluation show limitation of forward flexion to 60 degrees, the criteria in effect since September 26, 2003 are more favorable and they support a 20 percent evaluation. Since September 26, 2003 (as noted above, the effective date of current rating criteria), the Veteran has been shown by two VA spine examinations to have limitation of thoracolumbar forward flexion to 60 degrees. As such, the Veteran meets the regulatory criteria for a 20 percent evaluation under Code 5237. The Board's previous decision arrived at the same conclusion, which supported the Board's grant of a 20 percent rating and this grant of an increased rating was implemented by the RO and was left undisturbed by the subsequent joint motion for remand and Court Order noted above in the Introduction to the instant Board decision. Thus, the question that remains is whether a rating in excess of 20 percent is warranted on a schedular or extraschedular basis. In viewing all competent medical evidence, it is noted that the Veteran has not, however, shown limitation of forward flexion that more nearly approximates 30 degrees, and no evidence suggests ankylosis at any time. An x-ray examination of the thoracic spine was normal with no indication of arthritis or disc disease in this segment of the spine. Thus, he is entitled to no more than a 20 percent schedular rating effective September 26, 2003. The Board has also considered whether there is medical evidence of additional limitation of motion of the thoracolumbar spine due to pain, weakness, fatigue, incoordination, or flare-ups of such symptoms to a degree that would support a rating in excess of 20 percent from September 26, 2003. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. As noted above, upon a June 2003 VA examination, the range of motion of the Veteran's thoracolumbar spine was essentially normal and the examiner noted only minimal pain. Lateral movement was limited by pain but only at 45 degrees on one side; forward flexion was not limited at all and the clinician noted that there was no muscle weakness, fatigability or instability. The August 2004 examiner reported pain with all movements but it was not noted at what degree the pain limited movement. The examiner reported that the Veteran could forward flex to 60 degrees and it was specifically noted that there was no fatigue, weakness or incoordination. Dr. B, a radiologist, reported in a May 2004 statement that the Veteran should be rated "60 percent" but he referred to the cervical and thoracic spine as one disability. The same radiologist indicated at the September 2005 Board hearing that the Veteran's primary disability was his cervical spine; he did not provide any testimony that would support a higher rating for the Veteran's thoracic strain. Upon the most recent VA examination, it was again reported that the Veteran forward flexion was to 60 degrees and pain was only noted at the extremes of motion of the thoracolumbar spine. In view of the foregoing, the Board finds that the preponderance of the evidence is against a finding of additional limitation of flexion of the thoracolumbar spine to 30 degrees, due to pain or flare-ups of pain, supported by objective findings, nor is there any medical evidence of such limitation of motion due to weakness, fatigue, incoordination or any other symptom. 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra. The VA may consider an extraschedular rating in cases that are exceptional, such that the standards of the rating schedule appear to be inadequate to evaluate a disability. 38 C.F.R. § 3.321(b)(1) (2007). Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are limited to cases in which there is an exceptional or unusual disability picture, with such related factors as marked interference with employment, or frequent periods of hospitalization, that makes it impractical to apply the regular standards of the rating schedule. The Board does not have the authority to assign, in the first instance, higher ratings on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). When an extraschedular rating may be warranted, the Board must refer the case to designated VA officials. Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board notes that the respective noncompensable and 20 percent disability ratings for the Veteran's back disorder are based, as far as practicable, upon the average impairment of earning capacity resulting from such a disorder in a civil occupation. See 38 C.F.R. § 3.321(a); accord 38 U.S.C.A. § 1155. The Board acknowledges that the Veteran was determined to be totally disabled due to his service-connected disabilities, effective May 25, 2004, in the RO's May 2008 rating decision. However, the record does not contain corroborating evidence indicating the degree of actual functional impairment experienced at work or records regarding the work time lost due to the Veteran's upper or thoracic back strain. Regarding the objective medical evidence, in the May 2004 private medical opinion, Dr. B. stated that the Veteran's upper back and neck strain disorders should have been rated at a 60% level. (Emphasis added). In making this determination, Dr. B. stated that the Veteran clearly had neurological deficits, appropriate to the noted narrowing at C3-4 and C5. He later noted that the Veteran had service-induced cervical spine problems (pain weakness, tingling) that made it difficult, if not impossible, for him to obtain or maintain gainful employment, safely. (Emphasis Added.) The Board notes that Dr. B's opinion was primarily concerned with the Veteran's cervical spine disorder. In fact, the opinion did not indicate that the Veteran's thoracic strain, by itself, resulted in a marked interference with employment. Moreover, in his testimony before the Board regarding the Veteran's employability, Dr. B. stated the Veteran would have difficulty finding employment due to: a tendency to drop things; documented spine problems with neurologic loss in EMG findings; muscle loss; and strength loss. (Hearing Transcript, page 15, 16.) The Board again notes that Dr. B did not indicate that the Veteran experienced marked interference with employment due solely to an upper back or thoracic strain. Moreover, in the August 2008 VA examination report, the examiner diagnosed the Veteran with a thoracic strain, noting that an X-ray examination of the Veteran's thoracic spine was negative. In his conclusion, the examiner stated that the Veteran could not do manual labor because of his cervical spine, lumbar spine disc disease, and bilateral foot pain. As such, the examiner, having diagnosed the Veteran with a thoracic strain, did not indicate that this disorder caused interference with the Veteran's employment. Moreover, the record does not reflect that the Veteran's upper back or thoracic strain, by itself, resulted in frequent periods of hospitalization. Considering the evidence before it, including the medical records in the claims file, the Board finds that the manifestations and effects of the Veteran's back disorder do not necessitate referral of the rating of that disability to designated VA officials for consideration of an extraschedular rating. The VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against a higher rating than granted by this decision for either period of time in question. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a compensable disability rating for upper back strain, prior to September 26, 2003 is denied. Entitlement to a rating in excess of 20 percent for upper back strain, from September 26, 2003, is denied. ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs