Citation Nr: 1757027 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-15 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. 3. Whether the rating reduction from 40 percent to 10 percent for service-connected lumbosacral strain under Diagnostic Code 5237, effective February 1, 2012, was proper. 4. Whether the rating reduction from 10 percent to non-compensable for service-connected pseudofolliculitis barbae under Diagnostic Code 7813-7806, effective February 1, 2012, was proper. 5. Entitlement to a disability rating in excess of 40 percent for service-connected lumbosacral strain. 6. Entitlement to a disability rating in excess of 10 percent for pseudofolliculitis barbae. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served in the United States Army from August 2000 to January 2007, to include service in Iraq. These matters come before the Board of Veterans' Appeals on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). In April 2017, the Veteran testified, via videoconference, before the undersigned Veterans Law Judge. A copy of that transcript is of record. Notably, in October 2010, the Veteran filed increased rating claims for his service-connected lumbosacral strain and pseudofolliculitis barbae (PFB) disabilities. At the time of the claim, the Veteran's lumbosacral strain disability was rated as 40 percent disabling and the PFB was rated as 10 percent disabling. In a November 2011 rating decision, the AOJ decreased the Veteran's disability ratings to 10 percent and non-compensable for the lumbosacral strain and PFB, respectively, effective February 1, 2012. The Veteran timely appealed, requested increased ratings for each disability. A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the appellant is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Here, as it specifically pertains to the disability rating for lumbosacral strain and PFB, the Appellant's appeal encompasses claims of entitlement to higher ratings since the date of claim and propriety of the reduction of the rating. Thus, the Board has rephrased the issues on the title page to reflect the separate increased rating and rating reduction issues and the fact that staged ratings have been assigned. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). The issues of entitlement to service connection for an acquired psychiatric disability and entitlement to a rating in excess of 10 percent for PFB are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed May 2007 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for PTSD. 2. The evidence associated with the claims file subsequent to the AOJ's May 2007 rating decision is not cumulative or redundant and is new and material. 3. A November 2011 rating decision implemented the disability rating reduction from 40 percent to 10 percent for lumbosacral strain, effective February 1, 2012. 4. At the time of the February 1, 2012 effective date of the reduction, the 40 percent rating for the Veteran's lumbosacral strain had not been in effect for more than five years. 5. The AOJ rating decision which reduced a disability rating for lumbosacral strain from 40 percent to 10 percent effective February 1, 2012 did not reflect consideration of the provisions of 38 C.F.R. § 3.344 and is void ab initio. 6. A November 2011 rating decision implemented the disability rating reduction from 10 percent to noncompensable for PFB, effective February 1, 2012. 7. At the time of the February 1, 2012 effective date of the reduction, the 10 percent rating for the Veteran's PFB had not been in effect for more than five years. 6. The VA examination report on which the reduction was based was not full and complete, did not reflect a material improvement in the Veteran's PFB, and did not indicate that it was reasonably certain that any improvement would be maintained under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The May 2007 rating decision denying service connection for PTSD is final. 38 U.S.C. §§ 5108, 7105 (2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). 2. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(b) (2017). 3. The reduction of the rating for service-connected lumbosacral strain from 40 percent to 10 percent was improper and restoration of the 40 percent disability rating effective February 1, 2012 is warranted. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344 (2017). 4. The reduction of the rating for service-connected PFB from 10 percent to noncompensable was improper and restoration of the 10 percent disability rating effective February 1, 2012 is warranted. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344 (2017). 5. The criteria for the assignment of an evaluation in excess of 40 percent for lumbosacral sprain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify or 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). With respect to the issue of entitlement to 40 percent for thoracolumbar spine disability, the Board observes that the Veteran holds the maximum available rating for motion loss. As such, additional examination to consider the holdings in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) is not warranted. See generally Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (consideration of 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). New and Material Evidence The Veteran seeks to establish service connection for an acquired psychiatric disability, to include PTSD. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under the applicable provisions, a claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. "Material" evidence is evidence which relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been received, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. The Board must presume the credibility of evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Veteran originally filed for service connection for PTSD in February 2007. A May 2007 rating decision denied the Veteran's claims. The relevant evidence before the AOJ at the time of the May 2007 rating decision consisted of the Veteran's service treatment records, a Statement in Support of Claim for Service Connection for PTSD, VA treatment records, and an April 2007 VA examination. Based on this evidence, the AOJ denied the claim reasoning that the Veteran did not meet all diagnostic criteria pursuant to the DSM to confirm a diagnosis of PTSD. The Veteran was notified of that decision but did not appeal or submit new and material evidence within one year of notification. Thus, the May 2007 rating decision became final. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). Since that time, the evidence of record consists of private treatment records, diagnosing PTSD. The evidence is new as it was not previously associated with the Veteran's claim folder at the time of the 2007 denial. The evidence is material as it relates to the nexus criteria for service connection. See 38 C.F.R. §§ 3.156(a), 3.304(f); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement). Thus, the claim is reopened. Propriety of Rating Reduction The Veteran contests the reduction in his disability ratings, specifically the reduction from 40 percent to 10 percent for the lumbar spine disability and the reduction from 10 percent to non-compensable for PFB. When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the Board observes that the rating reduction did result in a reduction of VA compensation being paid to the Veteran as the overall, combined disability rating was reduced from 50 percent to 10 percent. When a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this case, the Veteran's disability ratings were awarded effective July 24, 2008; the ratings were reduced effective February 1, 2012. Accordingly, 38 C.F.R. § 3.344(c) applies. Under 38 C.F.R. § 3.344(c), reexaminations disclosing improvement in a service-connected disability will warrant reduction in rating. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 420 (1993); Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). As a preliminary matter, the Board finds that the procedural requirements of § 3.105 were satisfied in this rating reduction. Notice of the reduction was sent in an August 2011 rating decision and notification letter. In a November 2011 rating decision, the RO informed the Veteran of the February 1, 2012 effective date of the reduction. The RO satisfied the requirements by allowing the time periods to expire before assigning the reduction effective date. See 38 C.F.R. § 3.105. Accordingly, the remaining issue is whether the reduction in the disability ratings is warranted based on the medical and lay evidence of record. Lumbar Spine Under the General Rating Formula for Diseases and Injuries of the Spine, 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 disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees but not greater than 235 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 disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. By way of history, the 40 percent evaluation for lumbosacral strain was assigned based on the findings of a September 2008 VA examination. At that time, the Veteran reported pain, stiffness and numbness in his low back. Upon range of motion testing, flexion was to 15 degrees and extension was to 10 degrees. Repeated movement caused an additional 10 degrees loss in range of motion. While there was no evidence of spasms, the Veteran did walk with a limping gait favoring his right leg. Pursuant to the findings of this examination, the Veteran was assigned a 40 percent rating for his lumbosacral strain. The Veteran's low back was reevaluated in May 2011. Active range of motion testing revealed flexion to 75 degrees and extension to 20 degrees. There was no objective evidence of pain following repetitive motion, nor was there additional limitation after three repetitions of range of motion. Based on the findings of this examination, the AOJ reduced the disability evaluation of the Veteran's service-connected lumbosacral strain to 10 percent. After a thorough review of the evidence, the Board finds that the AOJ failed to properly make findings in this case as to both prongs of the Faust test for rating reduction cases. The adjudicatory documents do not demonstrate that the AOJ made a finding with respect to whether the improvement noted reflected "an improvement in the Veteran's ability to function under the ordinary conditions of life and work" to support the rating reduction. Without such explicit findings, the Board cannot properly analyze the ratings-reduction issue currently on appeal. Accordingly, the action to reduce the rating is void and the 40 percent evaluation for lumbosacral strain under Diagnostic Code 5237 is restored, effective February 1, 2012 as though the reduction had not occurred. See Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 PFB Similarly, the Board also finds that restoration of the 10 percent rating for PFB, effective February 1, 2012, is also warranted. The Veteran's PFB is currently rated under Diagnostic Code 7813, which states that dermatophytosis, which includes ringworm of the beard area, i.e., tinea barbae, is to be rated based on the predominant disability and the RO determined that the Veteran's PFB was most appropriately rated as analogous to dermatitis or eczema under Diagnostic Code 7806. See 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.118, Diagnostic Code 7806, a non-compensable rating is warranted when there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected; and no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when there is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. The 10 percent rating for PFB was assigned based on the September 2008 VA examination, at which time, the Veteran reported itching, ingrown hairs, and bumps in the associated neck area. The clinician noted the condition was asymptomatic at the time of the examination, but did note the following objective factors: hyperpigmented papules and macules on the undersurface of chin and anterior neck region. The skin lesion coverage of the exposed area was 5 percent. At the May 2011 VA examination, the Veteran reported that he had bleeding and itching of the lesions on his face; he used alcohol to alleviate his symptoms after shaving. The clinician noted that the Veteran's PFB covered less than 5 percent of exposed areas and less than 5 percent of total body area. Based on the forgoing, the Board finds that the reduction from 10 percent to noncompensable for service-connected PFB was not proper. The above evidence, regardless of the approximate body area or exposed boy area is affective by PFB, does not reflect that there has been material improvement in the Veteran's skin disability or that it is reasonably certain that any improvement will be maintained under the ordinary conditions of life. Rather, recent testimony from the Veteran demonstrates that there has not been material improvement under the ordinary conditions of life in his PFB. Specifically, the Veteran frequently self-medicates with different oils and creams to alleviate his symptoms. He described flare ups of his symptoms, to include bumps and itching, which causes his skin to dry out and bleed when he shaves. Based on this, the evidence does not clearly warrant the conclusion that sustained improvement in PFB has been demonstrated. In this regard, the May 2011 examination only indicated that the Veteran's PFB was not symptomatic at the time of the examination and did not provide a full and complete picture of the Veteran's affected skin area and the effects of shaving on his skin disability. The evidence is thus at least evenly balanced as to whether restoration of the 10 percent rating is warranted, and doubt remains as to the propriety of the reduction from 10 percent to noncompensable. Restoration of the 10 percent rating for PFB is therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (stating that where the evidence is in relative equipoise as to any point, reasonable doubt is to be resolved in favor of the Veteran); see also 38 C.F.R. 3.344(b) (the prior rating will be continued "if doubt remains"). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As discussed below, the disability has not significantly changed and a uniform evaluation is warranted. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). However, if the disability rating exceeds the maximum evaluation for limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable Johnston, 10 Vet. App. 80, 85 (1997). Lumbar Spine The Veteran's lumbar spine disability is currently rated 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran contends that his service-connected lumbosacral strain is more severe than the current 40 percent rating contemplates. Thus, the primary issue on appeal is whether the overall impairment caused by the Veteran's spine disability more nearly approximates the criteria for a higher evaluation. For the following reasons, the Board finds that it does not. All disabilities considered under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 are evaluated under common criteria outlined in the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable anklyosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable anklyosis of the entire thoracolumbar spine. And a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. At the September 2008 VA examination, the Veteran reported having stiffness and numbness in the low back; however he denied loss of bladder and bowel control. He described his low back pain as constant aching and cramping. He rated the pain at a 9 out of 10 and stated that his pain was aggravated by physical activity, but relieved with rest. Due to pain, he was unable to stand for more than two or three minutes straight, was limited in exercise and was unable to bend or twist. Range of motion testing revealed the following: forward flexion up to 15 degrees with pain at 5 degrees, and extension up to 10 degrees with pain at 5 degrees. After repetitive use, the Veteran's spine function was additionally limited by 10 degrees due to pain, fatigue, weakness and lack of endurance. There was no evidence of intervertebral disc syndrome. At the May 2011 VA examination, the Veteran described having daily moderate stinging in his low lumbar area along with pain with prolonged standing. However, there were no flare ups or functional impairment attributable to the low back. He used over the counter medication as needed to alleviate his pain. Upon active range of motion testing, forward flexion measured to 75 degrees while extension measured to 30 degrees. While there was objective evidence of pain on active range of motion, there was no additional limitation after three repetitions. There was also no evidence of spasm, atrophy, guarding, or weakness. Also of record are private treatment records from the Veteran's chiropractor and physical therapist. The treatment records document the Veteran's symptoms, such as pain and decreased range of motion, along with the treatment notes. Throughout the appeal period, treating physicians have noted the Veteran's reports of dull pain aggravated by certain movements. However, range of motion was never noted to be severely limited; in fact, more recent treatment records demonstrate of notable improvement in the Veteran's pain and range of motion. With respect to the claim for an increased rating for the lumbar spine disability, the Board finds that a rating in excess of 40 percent is not warranted. In order to warrant a higher rating, there must be unfavorable ankylosis of the entire thoracolumbar spine. Note (5) explains that 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. Based on the aforementioned range of motion findings, it is apparent that the Veteran's lumbar spine is not fixed or immobile, and ankylosis has not been noted in any of the Veteran's treatment records or examinations. The Board notes that the current evaluation exceeds the maximum evaluation for limitation of motion of the lumbar spine; thus, the criteria under 38 C.F.R. §§ 4.40 and 4.45 do not apply. See DeLuca, 8 Vet. App. 202; Johnston, 10 Vet. App. at 85. Here, the VA examiners specifically found that repetition on the range of motion three times did not cause any additional limitation in range of motion. While the Veteran did report flare-ups of symptoms periodically, there is nothing to suggest unfavorable ankylosis. Consequently, a higher rating is not warranted on this basis. The Board has considered whether the Veteran is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, there is no evidence of either IVDS or incapacitating episodes as contemplated by the regulation. Indeed, to warrant a rating to 60 percent, there must be evidence of incapacitating episodes having a total duration of at least 6 weeks. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and indeed, in light of the lack of any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. The Board has also considered the lay statements of record regarding the severity of the Veteran's symptoms. Lay witnesses are certainly competent to attest to physical symptoms one experiences or witnesses, such as pain and limited movement. See Layno v. Brown, 6 Vet. App. 456 (1994);Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, the lay witnesses have been credible; however neither the medical evidence, to include multiple VA examinations, nor the lay evidence of record suggests that an evaluation in excess of 40 percent is warranted. The Board finds the medical evidence to be far more probative to the degree of impairment than the lay evidence of record. For the forgoing reasons, the Board finds that there is no basis for a rating in excess of 40 percent for the Veteran's degenerative disc disease of the lumbar spine, as her symptoms during the appeal period more nearly approximate that which is contemplated by the 40 percent criteria, and no higher, under 38 C.F.R. § 4.71a, Diagnostic Code 5237. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The claim for service connection for PTSD is reopened. To this extent only, the appeal is granted. Restoration of the 40 percent rating for lumbosacral sprain under Diagnostic Code 5237, effective February 1, 2012 is granted, subject to the laws and regulations governing the payment of monetary benefits. Restoration of the 10 percent rating for PFB under Diagnostic Code 7813-7806, effective February 1, 2012 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for lumbosacral strain is denied. REMAND As for the remaining issues, additional development is required prior to appellate adjudication. The Veteran claims entitlement to service connection for an acquired psychiatric disability, to include PTSD. During the appeal period, the Veteran was afforded two VA examinations, at which time, the examiners provided a negative nexus for PTSD. However, neither clinician provided an opinion as to the etiology of the Veteran's other diagnosed psychiatric disabilities. Upon remand, the AOJ should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his psychiatric diagnoses. The Veteran also seeks an increased rating for his service-connected PFB, currently rated 10 percent disabling. Review of the record reflects that the Veteran's most recent VA examination assessing the severity of his disability was in May 2011. The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). However, recent testimony reflects that the Veteran's symptoms of PFB may have spread. See Board Hearing Transcript, pp. 14-18. In light of the Veteran's contentions, another VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records related to the claimed disabilities and associate them with the record. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of his acquired psychiatric disabilities. The claims folder must be made available to and reviewed by the examiner. Upon review of the record and examination of the Veteran, the examiner should answer the following: a) List all acquired psychiatric diagnoses the Veteran has. b) For each diagnosis listed, is it at least as likely as not the disability had its onset in service OR was caused by or is etiologically related to his period of service? OR c) Is it at least as likely as not the disability was caused or aggravated beyond the normal progress of the disorder by the Veteran's service-connected disabilities? Aggravation is defined as permanent worsening of a disability beyond its natural progression For purposes of the examination, the clinician should accept as true the Veteran's reports of witnessing bombings while stationed in Iraq. 3. Schedule the Veteran for a VA examination to assess the current severity of his PFB. The claims folder must be made available to and reviewed by the examiner. 4. After the above requested development and any other development deemed necessary have been completed, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for further appellate adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs