11-34 313, 11-34 313

Veteran served Aug 1975–Mar 1976 and appealed a March 2010 RO decision awarding service connection for chronic muscular strain with lumbar instability effective June 16, 2009.
Initial rating set at 30% (Mar 2010), later increased to 40% (Jan 2013); Veteran seeks an evaluation greater than 40%.
Multiple VA examinations (Mar 2010, Jun 2011, Jul 2012, May 2015) show variable limited thoracolumbar motion, pain with motion, flare-ups, and functional loss, but no ankylosis of the entire thoracolumbar spine.
The record includes findings of repeated-use limitations and flare-ups, but range-of-motion testing consistently showed motion in all planes; most recent exam showed improved flexion.
Disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (lumbosacral strain) using the General Rating Formula for Diseases and Injuries of the Spine.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a rating greater than 40% is warranted for chronic muscular strain with lumbar instability since June 16, 2009	Current 40% rating underestimates severity; reports of severe functional impairment, pain, inability to stand/sit or finish day without lying down	Evidence does not show unfavorable ankylosis or objective pathology meeting >40% criteria; motion exists in all planes and exams do not show ankylosis	Denied — preponderance of evidence does not support >40% rating

Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (resolved issues may be removed from appeal)
Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA compliance with duty-to-assist and notice requirements)
Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board need not discuss every piece of evidence in decision)
Timberlake v. Gober, 14 Vet. App. 122 (2000) (claimant should not assume Board overlooked evidence not explicitly discussed)
Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings appropriate when symptoms vary over time)
Fenderson v. West, 12 Vet. App. 119 (1999) (principles supporting staged ratings)
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (doctrine of reasonable doubt and burden of proof)