Citation Nr: 1800763 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 07-03 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected lumbosacral strain prior to January 30, 2014. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Husain, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. During the course of the appeal, jurisdiction over this case was transferred to the RO in Roanoke, Virginia. In an April 2011 decision, the Board denied the Veteran's claim of entitlement to an increased rating for the service-connected lumbosacral strain. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Memorandum Decision, the Court vacated the Board's April 2011 decision and remanded the issue of entitlement to an increased rating for lumbosacral strain for appropriate action. In December 2013, the Board remanded the increased rating claim for further evidentiary development. In a February 2014 decision, the RO increased the rating assigned to the lumbosacral spine disability to 40 percent, effective January 30, 2014. In an April 2014 decision, the Board denied the appeal of entitlement to an increased rating for lumbosacral strain, rated as 20 percent disabling prior to January 30, 2014, and 40 percent thereafter. The Veteran again appealed the decision to the Court. In a June 2016 Memorandum Decision, the Court vacated that portion of the Board's April 2014 decision which denied a rating in excess of 20 percent for lumbosacral strain prior to January 30, 2014, and a separate rating for neurological impairment of the left lower extremity, and remanded those issues to the Board for appropriate action. In a July 2017 rating decision, the RO granted service connection for left lower extremity peripheral neuropathy, thus satisfying that claim on appeal. Accordingly, that issue is no longer before the Board. In March 2017, the Board remanded the Veteran's lumbar spine disability increased rating claim for additional development. His claim has since returned to the Board for further consideration. FINDING OF FACT The preponderance of the evidence is against a finding that lumbosacral strain is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine prior to January 30, 2014. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbosacral strain prior to January 30, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify. 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."). The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C.A § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. As noted above, in March 2017, the Board remanded the lumbosacral disability increased rating issue to the AOJ for additional development. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for mechanical low back pain, lumbar myositis, was awarded in a January 2002 rating decision and assigned a 20 percent rating. In May 2006, the Veteran filed a claim for increase for the mechanical low back pain, lumbar myositis. The RO continued the 20 percent rating. In February 2014, the RO recharacterized the disability as lumbosacral strain and awarded a 40 percent rating, effective January 30, 2014. The Veteran's lumbosacral strain is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. 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. Id. 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). In December 2005, the Veteran reported to the emergency room with complaints of a flare-up of lower back pain. Upon physical examination, the Veteran appeared moderately uncomfortable and had limited bending at the waist due to stiffness and discomfort. The examiner found spasm/tightness in the right lumbar muscles. The examiner diagnosed the Veteran with lower back pain. In January 2006, the Veteran sought treatment with complaints of "exacerbation of his low back pain." The examiner noted that the Veteran reported "sudden locking of his back with associated weakness and numbness of both lower extremities." The examiner further noted that the Veteran's lower back pain increases with prolonged sitting or standing, as well as walking. The examiner reported that a 2004 MRI test revealed "the presence of L5-S1 HNP (herniated nucleus pulposus) with annular tear and faced joint degenerative joint disease (DJD)." Upon physical examination, the examiner found moderate spasms and "pain to palpation of the lower lumbar spinous processes and both iliolumbar ligaments as well as sacroiliac joints." The examiner also found limited range of flexion and lateral bending and "decreased sensation in stocking glove pattern." The examiner diagnosed the Veteran with low back pain secondary to spasms. A February 2006 physical therapy note stated that the Veteran experienced back pain that intensified with prolonged positions. The VA physical therapist reported constant and dull pain that was measured as a 6 on a scale of 1 to 10 by the Veteran. The Veteran was afforded a VA examination for the spine in July 2006. The examiner noted that the Veteran presented with low back pain that had become worse since his last VA examination with decreased range of motion, constant pain, and increased stiffness. Upon motor examination, no atrophies of the lower extremities were found by the examiner. The examiner also found that the manual muscle test was 5/5, L1 to S1 myotomes bilaterally, and that the Veteran had normal muscle tone. The examiner also found that the Veteran's straight leg test was painful, but negative. During the examination, the Veteran reported flare-ups that result in pain rated from 5 to 10 on a pain scale of 1 to 10, with 10 being the worst. The examiner noted that the Veteran's flare-ups are caused by prolonged sitting, driving a car, and sudden flexion and extension of his trunk. The examiner opined that the Veteran had additional limitation of motion or functional impairment during flare-ups to include "decreased ambulation secondary to low back pain flare up." The examiner noted that the Veteran used a one-point cane for ambulation. In the functional assessment section of the examination report, the examiner stated that Veteran "needs assistance to put on shoes and socks and when bathing lower legs, feet." Upon physical examination, the examiner recorded the following range of motion measurements for the thoracolumbar spine: flexion to 90 degrees with pain beginning at 69 degrees; extension to 30 degrees with pain beginning at 20 degrees; lateral bending right and left to 20 degrees; and rotation right and left to 20 degrees. The examiner determined that the spine was painful on motion and that the Veteran had painful flexion to 69 degrees and extension to 20 degrees. The examiner further determined that the function of the spine was additionally limited by pain, but not by fatigue, weakness, or lack of endurance following repetitive use during physical examination. The examiner recorded the "functional limitation of the lumbar spine" as 69 to 90 degrees of flexion, 22 to 30 degrees of lateral bending right and left, and 20 to 30 degrees of lateral rotation right and left. The Veteran was diagnosed with chronic low back pain and lumbar myositis. In the Veteran's substantive appeal, received in January 2007, he wrote that felt that his disability had worsened. He noted he was taking medication for his low back pain to ease the pain and daily discomfort. He stated he was using a TENS machine, a heating pad, and was provided a cane for support. A February 2009 VA treatment record shows that the Veteran reported chronic lower back pain for the last 20 years. He described the pain as sharp, shooting, and burning. He reported being unable to do prolonged sitting, prolonged walking, bending forward, or bending backwards. The examiner described him as not being in distress and wearing a back brace. Strength in lower extremities was 5/5, except for left hip flexion, which was 4/5. The examiner wrote that gait was normal for short-distance walking. The examiner described the Veteran as having "very limited lumbar forward flexion and extension." A May 2009 VA treatment record shows that the Veteran reported he was working for VA as a medical support assistant. During a December 2009 VA examination of the spine, the Veteran reported limitations in walking and experiencing falls as a result of his back condition. The Veteran further reported experiencing severe pain, stiffness, decreased motion, spasms, numbness, and paresthesia. The Veteran reported experiencing flare-ups that caused functional impairment in that he cannot stand, walk, bend, walk stairs, or exercise. The Veteran further reported overall functional impairment in that "he is unable to stand, walk, bend or do exercises." Upon physical examination, the physician noted slight tenderness on the low back muscle. The examiner noted that the Veteran's walking was steady, and that the Veteran did not require any assistive device for ambulation. The examiner noted pain during range of motion testing and that the joint function of the spine was additionally limited by pain after repetitive use. The examiner recorded the following initial range of motion measurements for the thoracolumbar spine: flexion to 75 degrees; extension to 10 degrees; lateral flexion to the right and left to 20 degrees; and rotation to the right and left to 20 degrees. The examiner also recorded the "degree at pain" for flexion as 75 degrees and the degree at pain for extension as 30 degrees. The examiner noted that the Veteran's gait was normal, and that the Veteran was able to do repetitive motion testing with no additional loss of motion. The examiner also recorded "no lumbosacral motor weakness." On February 28, 2013, the Court issued a Memorandum Decision. In the decision, the Court held that the December 2009 VA spine examination was inadequate because the examination did not adequately address additional range-of-motion loss as a result of functional loss during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (Medical examinations evaluating functional loss under diagnostic codes using limitation of motion measurements "must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over time). See also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (examination was considered inadequate where the examiner did not consider "functional loss on use or during flare-ups"). A July 2013 VA treatment record shows that the Veteran was seen for left knee pain since approximately April 2013. The Veteran reported he was walking about one mile a day while at work. The examiner noted an MRI of the lumbar spine from May 2013 showed "no significant abnormality." The Veteran reported sleeping seven hours a night and doing "yard work for fun." The examiner noted that the Veteran worked at the VA Medical Center and had since 2008. Physical examination demonstrated that the Veteran had motor strength of 5/5 in the lower extremities, bilaterally. The examiner wrote that the Veteran could "toe touch 3 inches from floor." The Veteran was afforded a VA examination of the spine in January 2014. When asked about flare-ups, the Veteran stated "[r]ight now I am having a flare-up. Long periods of sitting down or doing sudden movements cause it to be worse." While the Veteran was experiencing a flare-up, the examiner recorded range of motion measurements of flexion to 30 degrees with pain, extension to 10 degrees with pain, right lateral flexion to 20 degrees with objective evidence of pain at 10 degrees, left lateral flexion to 20 degrees with pain, right lateral rotation to 10 degrees with pain, and left lateral rotation to 10 degrees with pain. The examiner further determined that the Veteran experienced "additional limitation in ROM of the thoracolumbar spine (back) following repetitive-use testing" as well as "functional loss and/or functional impairment of the thoracolumbar spine." Specifically, the examiner listed symptoms of "less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing" as the manifestations of "functional loss, functional impairment and/or additional limitation of ROM of the thoracolumbar spine." In addition, the examiner found that the Veteran had paraspinal muscle spasm and that muscle spasm and guarding resulted in abnormal gait or spinal contour. However, when asked to "describe any such additional limitation due to pain, weakness, fatigability or incoordination, and if feasible, this opinion should be expressed in terms of the degrees of additional ROM loss due to pain on use or during flare-ups" the examiner stated "for any musculoskeletal condition, flare-ups could limit functional impairment through pain, weakness, fatigability, or incoordination when the joint is used repeatedly over a period of time. It is not possible to quantitate the additional limitations as there is no factual basis for such quantification." The examiner found that hip flexion and knee extension were 5/5 on the right; left hip extension was 4/5, and left knee extension was 5/5. The examiner noted that there was no muscle atrophy. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation in excess of 20 percent prior to January 30, 2014, for lumbosacral strain. Prior to this date, the preponderance of the evidence is against a finding that the Veteran's disability picture is closer to the 40 percent rating, which contemplates flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. There is competent evidence that the Veteran does not have ankylosis, so that symptom to warrant a 40 percent rating is not shown throughout this part of the appeal period. The Veteran does not allege having ankylosis of the thoracolumbar spine. The evidence indicates that during this part of the appeal period, which is prior to January 2014, the Veteran's lumbar spine disability manifested with pain and limitation of motion; however, it does not show, on the whole, forward flexion of the thoracolumbar spine to 30 degrees or less. Although the Veteran is shown to experience forward flexion of the thoracolumbar spine to 30 degrees during flare-ups, as documented during the January 2014 VA examination, where the Veteran specifically reported to the examiner that he was experiencing a flare-up, other ranges of motion prior to January 2014 do not show that the Veteran's flexion was limited to 30 degrees or less. For example, in November 2005, when the Veteran was seen with complaints of numbness in his lower extremities, the examiner wrote that the Veteran's range of motion was "intact" with adequate muscle tone and no deformities. The examiner specifically wrote that the Veteran denied associated back pain at that time. In December 2005, a VA examiner wrote that the Veteran had limited bending, although the examiner did not indicate the specific range of motion. One month later, the VA examiner wrote that the Veteran's range of motion was "intact." That same month, an examiner wrote that the Veteran had limited back flexion and lateral bends, and noted that the Veteran was having an acute exacerbation of his low back, which would indicate that such limited motion was for a short period of time. In February 2006, the Veteran was able to forward flex to "-24 cm to touch toes." This would establish that the Veteran was able to bend forward to approximately 9 inches from the ground, which would appear to establish flexion greater than 30 degrees. In March 2006, his range of motion was described as "intact." In April 2006, the Veteran was "-21 cm" from touching his toes. This would establish that the Veteran was able to bend forward to approximately 8 inches from the ground, which would appear to establish flexion greater than 30 degrees. In July 2006, his flexion was to 69 degrees. In August 2006, his range of motion was described, again, as "intact." Next to low back pain was written, "STABLE," which would establish that the Veteran's lumbosacral strain was stable. This same notation was written in a November 2006 VA medical entry, when the examiner described the Veteran's range of motion as "intact." "STABLE AT THIS TIME" was written next to the Veteran's low back pain in April 2007 and May 2007 VA medical entries. Such notations would indicate that the Veteran's lumbosacral strain was not worsening during this time period. In August 2007, the Veteran's range of motion was again characterized as "intact." In February 2009, the Veteran had "very limited lumbar forward flexion and extension." In September 2009, the examiner wrote that the Veteran had normal "gross flexion and extension," which was also noted in an October 2009 VA medical entry. When the Veteran was seen in November 2009 and December 2009, he denied any pain. At the December 2009 VA examination, he had flexion to 75 degrees, which is when pain began and he was able to do three repetitions at that same degree of flexion. In September 2010, the Veteran was seen for intermittent weakness and numbness on the left side of his face, and examination of the back revealed no vertebral bony tenderness and no paravertebral tenderness. In a separate medical entry on that same day, the examiner wrote, "No back pain." In October 2010 and December 2010 VA medical entries, it was specifically noted that the Veteran's gait was normal. The Veteran was described as limping in April 2011, but the examiner noted that examination of the back showed no vertebral bony tenderness. In July 2011, the Veteran's range of motion was noted to be decreased due to pain. The Veteran reported that he had had back pain for 15 years and that it had worsened. In September 2011, October 2011, March 2012, June 2012, and December 2012, it was noted that the Veteran was not using an ambulatory aid and that his gait was normal. In March 2013, the Veteran was seen with a complaint of back pain for two weeks and was using a cane at that time. In July 2013, the Veteran reported walking about one mile a day while at work. The examiner wrote that the Veteran could "toe touch 3 inches from floor," which would be indicative of more than 30 degrees of flexion. The Veteran reported he had been working at the VAMC since 2008. In August 2013, the Veteran denied back pain, and his gait was normal, and he was not using an ambulatory aid. In December 2013 and January 2014, his gait was reported as normal, and he was not using an ambulatory aid. Under 38 C.F.R. § 4.1, it specifically states, "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." In other words, just because a claimant has an exacerbation of the disability does not mean that the overall disability picture has increased. In reviewing the evidence of record, it shows that the Veteran had exacerbations of his symptoms at various points throughout the appeal period, however, his overall disability picture did not indicate a disability picture that more closely approximates the 40 percent rating. Again, the 40 percent rating contemplates favorable ankylosis of the entire thoracolumbar spine. The Board is aware that the Veteran reported that when he was having a flare-up, he could not bend. The Veteran was examined during a flare-up in January 2014, at which time, he was able to flex to 30 degrees. This is evidence against a finding that the Veteran cannot bend. He can bend, but not as much as he can when he is not having a flare-up. The Board finds that the 20 percent rating contemplates such temporary exacerbation. The Veteran has been awarded a 40 percent rating based upon his flexion that was documented in the January 2014 VA examination, which was to 30 degrees. However, after that, his flexion has not continued to demonstrate such limited motion. For example, in May 2014, when the Veteran's back was examined, the examiner wrote that there was no vertebral bony tenderness and described the Veteran's backache was having "minimal discomfort." When the Veteran underwent a VA examination in April 2017, his flexion was to 60 degrees, which would not be indicative of a 40 percent rating and, instead, falls squarely in the 20 percent rating. In reviewing the evidence of record, the Board does not find that the evidence establishes that the Veteran's overall disability picture meets the criteria for a 40 percent rating. The Veteran has been employed full time by VA since 2008, which employment continues to the present time, which means a period of almost 10 years. The Veteran has not reported excessive absences or an impairment in his ability to work that is beyond the 20 percent rating as a result of his back disability, to include during flare-ups, prior to January 2014. The Court had found that the 2009 VA examination was inadequate because the examiner did not adequately address additional range-of-motion loss as a result of functional loss during flare-ups. The Veteran's range of motion during flare-ups before the January 2014 VA examination cannot be ascertained without speculation. The Board notes that an increased disability rating may not be established on the basis of speculation. Regardless, the Board finds that there is sufficient evidence prior to January 2014 to establish an overall disability picture of the Veteran's lumbosacral strain, which is not indicative of a 40 percent rating. In July 2013, the Veteran reported he was able to walk one mile a day while at work, which is indicative of the Veteran moving around. Reasonable doubt means a doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Accordingly, a disability rating in excess of 20 percent for a lumbar spine disability at any point in the period on appeal is not warranted based upon DC 5242. The Board has considered whether a disability rating higher than 20 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. The Board notes, however, that the rating criteria are intended to take into account functional limitations, and therefore the provisions of 38 C.F.R. §§ 4.40 and 4.45 could not provide a basis for a higher evaluation. See 68 Fed. Reg. 51454 -5 (Aug. 27, 2003). The July 2006 VA examiner indicated that pain, but not fatigue, weakness, and lack of endurance occurred after repetitive use, and that such pain during repetitive use did further limit the range of motion. The December 2009 VA examiner noted that after repetitive use testing, range of motion measurements showed additional degrees of limitation. The Court has held that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Although the evidence does show that the Veteran experiences painful motion and that he reports intermittent falls; it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Thus, a history of falls and any additional limitation due to pain did not more nearly approximate a finding of favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. 32. Therefore, the Board finds that the 20 percent rating for the period of appeal prior to January 30, 2014 contemplated functional loss due to pain, excess fatigability, and less movement. There is no basis for the assignment of additional disability rating due to pain, weakness, fatigability, weakness or incoordination during this period of appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. After considering the effects of pain and functional loss, forward flexion of the thoracolumbar spine was not shown to be 30 degrees or less, nor was favorable ankylosis of the entire thoracolumbar spine shown at any point during the appeal period. Thus, a higher rating under 38 C.F.R. §§ 4.40, 4.45, or 4.59 criteria is not approximated in the Veteran's disability picture for the entire appellate period. The preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 20 percent for lumbosacral strain prior to January 30, 2014, and must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to a rating in excess of 20 percent for service-connected lumbosacral strain prior to January 30, 2014 is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs