Citation Nr: 1333690 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-20 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for degenerative disc disease, status post L4-L5 fusion, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970, and November 1977 to December 1997. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. The rating decision reduced the evaluation for the Veteran's degenerative disc disease, status post L4-L5 fusion, to 20 percent. In a November 2010 decision, the Board restored the Veteran's 40 percent evaluation, and remanded the issue of entitlement to an evaluation in excess of 40 percent. A January 2012 Board decision denied an evaluation in excess of 40 percent for degenerative disc disease, status post L4-L5 fusion. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) in August 2012. By order dated in August 2012, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The Board remanded the issue in January 2013 for additional development. The case is now before the Board for final appellate consideration. FINDING OF FACT The evidence of record does not show that the Veteran's low back disability results in ankylosis of the thoracolumbar spine, a separate neurological disability, or incapacitating episodes of 6 weeks or more during any consecutive 12 month period of the claim. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for degenerative disc disease, status post L4-L5 fusion, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in an October 2006 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, and private medical records. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The November 2010 Board decision determined that a November 2006 VA examination was inadequate for purposes of reducing the Veteran's evaluation to 20 percent. Thus, a new VA examination was conducted in February 2011. Another VA examination was conducted in June 2013 to address whether the Veteran's service-connected degenerative disc disease, status-post L4-L5 fusion, was characterized by an identifiable and separate neurological component. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate for an increased evaluation claim. The reports reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for any opinions offered. Taken together, the examiners consider the Veteran's medical history, including his lay reports of his symptomatology; describe the Veteran's disability in sufficient detail; and fully describe the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board acknowledges that VA has a duty to ensure compliance with the terms of a remand and that the February 2011 VA examination report did not specifically provide the information requested by the Board's November 2010 remand as to the point at which pain begins on range of motion testing. However, the Board finds that there was substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, the Veteran was provide another VA examination in June 2013. The development requested by the January 2013 remand has been conducted. Stegall, supra. Among other things, the correct date of a VA treatment record misidentified in the JMR was clarified. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his increased evaluation claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks an evaluation greater than 40 percent for degenerative disc disease, status post L4-L5 fusion. Disability evaluations are determined by comparing a veteran's present symptoms 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. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran is rated at 40 percent under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a Diagnostic Codes 5235 to 5243 (2013). Intervertebral disc syndrome will be evaluated under the General Rating Formula or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. An incapacitating episode is 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). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 40 percent evaluation is warranted where forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Factual Background Report of VA examination dated November 2006 reflects a history of back pain and surgery. The Veteran reported a severe flare-up of back pain in August 2006, treated at a private hospital with prescriptive Lortab, a Medrol dose pack, Methocarbamol, and Tramadol. He continued to work during this week-long episode of back pain, but walked slower and tried not to do heavy lifting. It was noted that the Veteran worked for a utility company reading meters and turning on/off water to different facilities. The Veteran denied any current back pain. The Veteran reported intermittent use of a cane for his back disability. Clinical evaluation showed no lumbar tenderness to palpation. Straight leg raising test was negative, bilaterally. There were no radicular symptoms. Muscle strength was 5/5 the lower extremities. There were trace reflexes in left patellar and bilaterally Achilles. There was absent right patellar reflex. Repetitive range of motion testing showed no increased stiffness. Light touch and pinprick was normal in the lower extremities. Range of motion testing showed flexion to 40 degrees without pain, and to 60 degrees with pain; extension was to 25 degrees with pain at the end; lateral flexion was 25 degrees, bilaterally, without pain; and rotation was 45 degrees, bilaterally, without pain. There was no scoliosis, the Veteran was able to walk on tiptoes and heels, and posture and gait were within normal limits. The diagnosis was degenerative disc disease of the lumbar spine status post anterior lumbar interbody fusion L4-L5 with new radiographic evidence of degenerative disc disease at L3-4. In March 2007, the Veteran argued that an increased evaluation was warranted because he attended physical therapy at least 3 times a week until pain worsened and he was referred to pain management. He reported pain at level 5-6 of 10 at all times, severely restricted mobility, major problems standing up, and an inability to stand for prolonged periods. He submitted a statement from his private physician along with recent treatment records. An undated letter from the Veteran's physician, C.B., M.D., reflects that the Veteran has daily back pain and has had to modify activities to reduce the number of flare-ups. She stated that the Veteran experiences daily pain associated with prolonged sitting or standing, when brushing his teeth, and when putting on socks. The physician observed that the Veteran sat very stiffly in a chair, has difficulty standing due to back pain. She noted "marked decrease in flexion of the trunk, with pain starting at about 20 degrees of forward flexion." There was left leg radiation. There was no loss of strength or sensation in the lower extremities. The physician reported that there were no neurologic findings; an EMG was normal. Accompanying treatment records dated October 2006 to February 2007 reflect evaluation and treatment of back disorder. These show that the Veteran had spine pain on motion and that pain was controlled with Lortab and Tramadol. VA treatment records dated September 2004 through May 2007 reflect that the Veteran was seen in April 2006 for follow up of his medical problems. It was noted that he denied any chief complaint. A June 2006 note relates that the Veteran had possible sciatica which had altered his gait. The report shows that the Veteran was discharged from physical therapy due to inability "to tolerate any therapy including pendulum exercises for the shoulder." The Veteran reported that he had adequate pain control 30 Lortabs per month. A bilateral lower lumbar joint ejection was planned along with conservative measures to include good sleep hygiene, weight loss, and using hot bath for muscle spasm. The Veteran was to continue with Tramadol and muscle relaxant, and anti-inflammatory medications and Tylenol for pain. Private medical records dated December 2006 reflect low back and lower extremity pain. The Veteran's primary complaint was for low back pain. Objectively, the gait was antalgic. Range of motion testing shows flexion to 30 degrees; extension to 20 degrees; and bilateral rotation/flexion 50 percent of full. There was some diminished lumbar lordosis. The assessment included lumbago with a differential diagnosis for discogenic pain, pain from the posterior column including facet and SI joint; some component of secondary myofascial pain, lower extremity pain related to referred pain versus nerve root irritation. A note dated February 2007 reflects multiple joint pain complaints, to include low back. He reported interference with home activities and recreation, but the Veteran was able to perform self-care. It was noted that the Veteran was retired. He reported that medications helped with pain and function. Low back was tender to palpation. The assessment included lumbar spondylosis. A June 2007 note reflects that the Veteran sought emergency room treatment for exacerbation of chronic low back pain; the examiner recommended excusing the Veteran from work and, on his return to work, limited lifting. A July 2007 note reflects low back and neck pain that interferes with work, home activities and recreation, but not self care. An assessment reflects chronic low back pain, status post L4-5 fusion that is neurovascularly intact, and notes that the Veteran had an exacerbation of his low back pain one week prior for unknown reasons. The Veteran and his physician discussed work limitations-not to lift more than 50 pounds on his own-but that he should be able to continue with work. In an April 2007 letter, Dr. C.B. noted that straight leg raising maneuver produced pain radiating into the left leg. The Veteran had no obvious strength loss and no obvious sensory loss to light touch in the lower extremities. Dr. C.B. also noted that the NCV/EMG studies of the lower extremities had been done and reported as normal. She stated that she saw no neurological findings and believed that the Veteran's condition was stable. Report of VA examination dated February 2011 reflects review of the claims file and pertinent past medical history. The Veteran denied doctor prescribed bedrest or incapacitation in the last 12 months. He reported difficulty taking baths as he is unable to bend down, and difficulty getting dressed. He reported assistance with dressing by his wife. He denied impediment to usual occupation-he reported that he could work if he takes his pain medications; he stated that he was a truck driver and utility worker for a power company. Medications included Hydrocodone and Cyclobenzaprine. By history, the Veteran had improved pain symptoms after his 1997 back surgery but that he continues to have pain. His most prominent symptoms was reported to be pain, described as constant and daily with severity of level 9 of 10 (level 10 being the worst). The Veteran denied stiffness, weakness, lack of endurance, and fatigability. He reported that "walking around" made the pain worse, but that he could walk one full block without stopping and climb stairs one level. He denied radiation, or associated bowel/bladder symptoms. The Veteran did not use a cane at this examination because he reported that he was running late this morning, but he reported that he had been prescribed a cane. He did not use a back brace. He denied alleviating factors. Objectively at the February 2011 examination, the Veteran appeared in no acute distress and had normal posture with the exception of a slightly elevated right shoulder. He had normal gait-it was not antalgic and he used no assistive devices. Reflexes were hypoactive (+1) in both the upper and lower extremities. There was no atrophy or loss of tone. Strength testing was +4/5 in all extremities. Sensory exam showed no gross deficits. Coordination-wise, the Veteran had difficulty walking on toes, and heels and toes. He could complete 3 squats without assistance. Range of motion testing yielded findings that did not change after 3 repetitions: Flexion was to 30 degrees; extension to 20 degrees, lateral flexion to 10 degrees; and lateral rotation to 45 degrees. The examiner stated that range of motion was limited by pain, deconditioning, and effort. The examiner reported that the Veteran displayed greater range of motion inadvertently during the examination and was able to both dress and undress without assistance. There was no exaggerated lumbar lordosis or thoracic kyphosis. The Veteran complained of "excruciating pain" on lumbar area palpation; there was no muscle spasm, or rigidity. There was no "deformity, misalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, instability, or pertinent abnormal weight bearing." There was no loss of function with repetitive use, except as noted. The examiner stated that loss of use due to flare-ups could not be determined without resort to speculation. The examiner further stated that his review of the record shows "inconsistency in member description of pain/symptoms and history. Member symptomatic reaction appears out of proportion to objective findings." An April 2011 report from a private doctor, D.E.F., M.D., notes that the Veteran has a history of intractable low back pain. He had undergone conservative and injective care, and had done well until he had an exacerbation which required surgery at L 4-5. Post operatively he had some improvement but with persistent back and lower extremity sciatica with intermittent exacerbations which were refractory to conservative measures. The Veteran had persistent and chronic symptoms, but had a reasonable pain control and function. He had part time work and stayed active at home including exercises. Private medical records dated subsequent to the January 2012 Board decision have been associated with the record. These include an October 2012 statement in which the Veteran's private treating neurologist provides that the Veteran was being evaluated for bilateral lower extremity paresthesias due to findings consistent with sensorimotor peripheral neuropathy of the lower extremities identified on neurodiagnostic testing. An October 2012 statement from Dr. D.E.F. provides that the Veteran had developed radicular symptomatology. At times, the Veteran had intense lower extremity pain during which he had to abandon tasks. He required anticonvulsants to help with lower extremity neuropathic symptomatology. A November 2012 statement from the Veteran's private treating podiatrist provides a pertinent diagnosis of neuropathy, unspecified. She indicated that a previous work-up by a neurologist revealed abnormal findings in the Veteran's NCV/EMG results. A November 2012 statement from a private treating physician relates that the Veteran was being treated for several conditions, including neuropathy. The report of the June 2013 Disability Benefits Questionnaire relates that straight leg testing was negative bilaterally, and there was no radicular pain or other signs or symptoms of radiculopathy. The Veteran did not have intervertebral disc syndrome. The Veteran's active range of motion was forward flexion to 40 degrees, extension to 20 degrees, bilateral lateral flexion to zero degrees, and bilateral lateral rotation to 20 degrees. The examiner observed that patients with similar diagnosis, and radiographic changes, displayed a greater range of motion than the Veteran did during the examination. The examiner therefore deemed the Veteran's effort suboptimal. The examiner stated that there was an inadvertant display of greater range of motion during the examination. The Veteran was able to dress and undress without any assistance except for shoe placement. The Veteran complained of excruciating pain while lying down on the examination table, without physiological changes. The examiner noted that more definitive loss of function, due to flare-ups, could not be determined without resorting to mere speculation. The Board observes that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2011). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. The Court in Jones held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. In the present case, it is clear that definitive loss of function, due to flare-ups, could not be determined without resorting to mere speculation because the Veteran was making a suboptimal effort and made complaints of pain inconsistent with physiological changes and his actual range of motion. The pertinent diagnosis was that there was no objective evidence to support the diagnosis of a separate neurological component of the Veteran's back disability. The Veteran's service-connected degenerative disc disease, status-post L4-L5 fusion, was not characterized by an identifiable and separate neurological component. The statement on the remand that the Veteran suffered from sciatica, which meant pain and not a nerve damage condition; a decrease or absent patellar reflex, which could be a normal finding due to age; and a positive leg straight test, which was "suggestive" but not diagnostic, could not be supported by the objective evidence. The examiner pointed out that a 2009 EMG and a 2010 MRI were negative for a cause of neuropathy/nerve damage. The examiner also stated that the Veteran's displayed limitations were inconsistent with his ability drive 300 miles for the examination, or his recent job retirement. The current pain clinic notes provided by the Veteran were inconsistent with his displayed examination that day. Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an increased evaluation for degenerative disc disease, status post L4-L5 fusion, currently evaluated as 40 percent disabling. Neither the lay nor the medical evidence of record more nearly reflects unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, or incapacitating episodes having a total duration of at least six weeks during any 12 month period of time during the appeal. 38 C.F.R. § 4.7, 4.71a, Diagnostic Codes 5235 to 5243. In fact, ankylosis (either favorable or unfavorable) is not shown by the lay or medical evidence. With respect to the question of entitlement to assignment of a separate rating for neurologic manifestations resulting from the lumbar spine disorder, the Board finds that the preponderance of the objective evidence, as described above, demonstrates that while neurologic complaints have been made throughout the appeal period that is considered in this decision, disabling neurological manifestations attributable to the lumbar spine disability have generally not been demonstrated clinically for the period considered in this appeal. In reaching this conclusion, the Board has considered (as discussed in the Joint Motion) that there is some evidence suggestive of the existence of separately ratable neurological disorder. For example, a November 2006 VA examination noted that although the Veteran did not report radicular pain, the right patellar reflex was absent. An April 2007 letter from C.B. noted that straight leg raising maneuver produced pain radiating into the left leg. A June 2008 treatment note stated that the Veteran suffered from sciatica that altered his gait. The Board has also noted that an October 2012 statement from Dr. D.E.F. provides that the Veteran had developed radicular symptomatology. At times, the Veteran reportedly had intense lower extremity pain during which he had to abandon tasks, and required medications to help with lower extremity neuropathic symptomatology. Similarly, a letter dated in November 2012 from a private podiatrist indicated that the Veteran had unspecified neuropathy and that there can be a direct correlation of his degenerative disc status post L4/L5 fusion contributing to his lower extremity diagnoses. The Board finds, however, that the foregoing items of evidence are outweighed by other more convincing evidence that shows that there is no separately ratable neurological manifestations. First, the Board notes that the VA examination of November 2006, while finding decreased reflexes, generally showed that other neurological findings were normal. In this regard, the report shows that straight leg raising test was negative bilaterally, there were no radicular symptoms, muscle strength was 5/5 the lower extremities, and light touch and pinprick were normal in the lower extremities. In addition, the report did not attribute the decreased reflexes to the service-connected back disorder. Thus, the Board finds that the report does not show the presence of a separately ratable disabling neurological disorder. Similarly, an undated letter from a private physician C.B. noted that the physician reported that there were no neurologic findings and an EMG was normal. Although an April 2007 letter from Dr. C.B. noted that straight leg raising maneuver produced pain radiating into the left leg, the Veteran had no obvious strength loss and no obvious sensory loss to light touch in the lower extremities. Dr. C.B. also noted that the NCV/EMG studies of the lower extremities had been done and reported as normal. She stated that she saw no neurological findings Thus, the overall message from that record is that there is no separately ratable disorder. Similar results are shown in a February 2011 VA examination which noted reflexes were hypoactive (+1) in both the upper and lower extremities, however, there was no atrophy or loss of tone. Strength testing was +4/5 in all extremities. Sensory exam showed no gross deficits. Thus, a disabling neurological disorder due to the service connected low back was not shown. A July 2012 private treatment record noted the presence of an EMG finding which showed mild neuropathy, but the treating physician attributed the neuropathy to impaired glucose tolerance and B12 deficiency rather than to the service-connected back disorder. Finally, the most recent VA examination found insufficient evidence of a separate neurological disorder. The report of the June 2013 Disability Benefits Questionnaire relates that straight leg testing was negative bilaterally, and there was no radicular pain or other signs or symptoms of radiculopathy. Although his upper and lower reflexes were only 1+/4, he had no loss of tone, no atrophy, and strength testing was 5+/5 in all extremities. Sensory exam showed no gross deficit and there was adequate vibratory response. The Board notes that given the normal strength and sensory examination without gross deficit, a disabling manifestation of a lower extremity neurological disorder is not shown in spite of the decreased reflexes. The report also noted the Veteran's complaints being out of proportion with the physical examination findings. After reviewing multiple past diagnostic tests, the examiner concluded that "There is no objective evidence to support the diagnosis of a separate neurological component of his back disability." The Board is of the opinion that this report is the most comprehensive evidence of record with respect to whether the Veteran has a separately ratable neurological manifestation. The examination was specifically conducted by the purpose of addressing that question, and the examiner exhaustively addressed that question. In light of these factors, the Board finds that separate ratings for neurologic manifestations of the lumbar spine disorder are not warranted. The evidence of record shows that the Veteran's low back disability is manifested by limitation of motion with pain on motion; and flexion of the lumbar spine limited to at worst 30 degrees, without ankylosis (either favorable or unfavorable) of the thoracolumbar spine, a separate neurological disability, or incapacitating episodes of 6 weeks or more during any consecutive 12 month period of the claim. The Veteran's manifestations more nearly approximate the criteria for a 40 percent schedular evaluation. The Board notes that a 40 percent schedular disability evaluation is warranted where there is forward flexion of the thoracolumbar spine to 30 degrees or less, or where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. Here, there is no ankylosis shown in the record, and the Veteran has thoracolumbar spine motion to at worst 30 degrees or less. The Veteran denied incapacitating episodes during the 2011 VA examination. The most recent VA examination, in June 2013, found that the Veteran did not have intervertebral disc syndrome. The Board notes that the Veteran is competent to report that his disability is worse. Layno, supra. The Board accepts that the Veteran has functional impairment, pain, and pain on motion. See DeLuca, supra. However, the Board finds the Veteran's own reports of symptomatology to be less than completely credible, in light of the fact that the June 2013 VA examiner found that the Veteran's efforts were suboptimal and his displayed limitations were inconsistent with his actual abilities. Even assuming the Veteran's complete credibility, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 40 is appropriate for the Veteran's low back disability. In order to warrant a higher evaluation, there must be the functional equivalent of ankylosis-frozen joint. According to the Court, pain alone does not constitute functional loss under VA regulations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the weight of evidence, lay and medical, is against the claim for increase. The Board has considered whether a staged rating is appropriate in this case. However, a review of the record shows that the disability has remained essentially the same throughout the appeal period. Because the evidence shows no distinct period where the disability exhibits symptoms that would warrant a different rating, the Board finds that a uniform disability evaluation is warranted and that there is no basis upon which to stage the rating. See Hart, supra; see also Fenderson, supra. The Board has further considered whether a separate disability evaluation may be awarded under any other provision. In this regard, the Board finds that a separate compensable evaluation based on scar is not warranted. The scar found on VA examination is not painful or unstable, deep and measuring 6 square inches (or greater), or superficial and measuring 144 square inches (or greater). The scar does not result in any functional limitations. 38 C.F.R. §§ 4.71a , 4.118, Diagnostic Codes 7801-7804. Lastly, the Board has considered whether the Veteran's claim for an increased evaluation for low back disability should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. As explained above, the Veteran's symptomatology (limitation of motion and pain) is fully contemplated by the pertinent diagnostic criteria. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the medical evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 40 percent for degenerative disc disease, status post L4-L5 fusion. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation in excess of 40 percent for degenerative disc disease, status post L4-L5 fusion, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs