Citation Nr: 1805223 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-37 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the period prior to April 19, 2013 for a low back disability. 2. Entitlement to a rating in excess of 20 percent for the period from April 19, 2013 to July 6, 2017 for a low back disability. 3. Entitlement to a rating in excess of 40 percent for the period since July 7, 2017 for a low back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1992 to December 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified during a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In February 2013, the Board remanded these issues for additional development while also noting that the Veteran claimed that a separate compensable rating was warranted for radiculopathy of his right lower extremity. In January 2014, a rating decision increased the Veteran's evaluation for a chronic lumbosacral strain to 20 percent, effective April 19, 2013, the date of medical evidence showing worsening. The Board notes that since the increase to 20 percent did not constitute a full grant of the benefits sought, the issue of entitlement to a rating in excess of 20 percent for the period from April 19, 2013 to July 7, 2017 remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In a January 2014 correspondence, the Veteran disagreed with the 20 percent rating and the assigned effective date of April 19, 2013, for the Veteran's 20 percent rating, noting that the Veteran filed his claim for an increased rating on January 29, 2007. The Board notes that although the Veteran's representative characterized this claim as a disagreement with the effective date of the 20 percent rating, this was essentially an increased rating claim for the period prior to April 19, 2013. Additionally, the Board also notes that while the Veteran noted the date of the initial claim for increase was January 29, 2007, an April 2007 rating decision continued the 10 percent rating for a chronic lumbosacral strain. More than one year after this rating decision, the Veteran filed a new claim for increased rating which was received on December 30, 2008. In a January 2015 decision, the Board, in part, denied the Veteran's claims for a rating in excess of 10 percent for the period prior to April 19, 2013 and a rating in excess of 20 percent for the period since April 19, 2013 for a chronic lumbosacral strain. The Veteran appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). In a March 2016 Joint Motion for Partial Vacatur and Remand, the Court partially vacated the January 2015 Board decision regarding the increased rating claims for chronic lumbosacral strain and remanded these claims for further appellate review. In September 2016 and April 2017 the Board remanded these issues for additional development. In an October 2017 rating decision, the RO increased the Veteran's evaluation for a chronic lumbosacral strain to 40 percent, effective July 7, 2017. The Board notes that since the increase to 40 percent did not constitute a full grant of the benefits sought, the issue of entitlement to a rating in excess of 40 percent for the period since July 7, 2017 remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. Since December 30, 2008, the Veteran's low back disability has been manifested by pain and limitation of motion. 2. For the period from December 30, 2008 to July 6, 2017, the Veteran's service-connected low back disability did not manifest in forward flexion of the thoracolumbar spine to 30 degrees, favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes resulting in doctor-prescribed bed rest and treatment by a physical with a duration of 4 weeks or more during any 12 month period. 3. For the period since July 7, 2017, the Veteran's low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation from December 30, 2008 for a low back disability have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for an evaluation in excess of 20 percent for the period from December 30, 2008 to July 6, 2017 for a low back disability have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5237 - 5243 (2017). 3. The criteria for an evaluation in excess of 40 percent for the period since July 7, 2017 for a low back disability have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5237- 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a February 2009 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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 duty to assist argument). Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 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; 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). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his lumbar spine disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran filed an increased rating claim for his service-connected low back disability that was received by VA on December 30, 2008. The Veteran's low back disability is rated under Diagnostic Code 5237. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The rating criteria define normal range of motion for the various spinal segments 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). Factual Background and Analysis The Veteran underwent a VA examination in April 2009. The Veteran reported that he had increased pain with activity. His pain was located in his low back only and did not radiate. There were no complaints of numbness but he did have pain that occasionally went into his hips. He had no bowel or bladder changes and no complaints or urinary or fecal incontinence. He used a cane on a daily basis. When he was at school, he used a wheelchair to ambulate which was mostly because of his bilateral foot pain. He used no back braces. He had no unsteadiness or history of falling secondary to his back pain. He complained of daily flare-ups of back pain that caused him to seek self-imposed bedrest when he returned home from his day's work. On examination, his deep tendon reflexes were 2/4 in the bilateral patella and Achilles. His distal neurovascular motor was intact. He complained of pain in both of his feet when assessing distal sensation. There were no palpable spasms. The lumbar spine maintains its normal curvature. Forward flexion of the lumbar spine was from 0 to 90 degrees with complaints of pain from 70 to 90 degrees of flexion. Extension was from 0 to 10 degrees with complaints of pain at 10 degrees. Right and left rotation was from 0 to 30 degrees with complaints of pain at 30 degrees. Right and left flexion was from 0 to 30 degrees with complaints at 30 degrees. His gait was antalgic. He did not exhibit any increased fatigue, weakness, lack of endurance or incoordination on repetitive motion testing. He did complain of increased pain on repetitive motion testing. There was tenderness to palpation in the L4-5, L5-S1 areas of the bilateral lumbar spine. The diagnosis was a lumbosacral strain and polyneuropathy of unknown etiology of the bilateral feet. A February 2010 MRI of the lumbar spine demonstrated disc desiccation and a small right paracentral annular tear at L5-S1 contacting the S1 nerve root. A March 2010 VA treatment record provided diagnoses of probable right lumbar radiculopathy/ right L5-S1 degenerative disc disease with annular tear per an MRI, chronic left lumbar radiculopathy and mild sensory polyneuropathy. A March 2010 VA physical rehabilitation consultation shows that the Veteran complained of pain radiating from his low back, down his legs, and into his feet. There was a notation of probable right radiculopathy. In an April 2013 letter, a private chiropractor opined that the Veteran's lumbar radiculopathy, low back and bilateral foot issues were service related. He indicated that the conditions that the Veteran appeared to be suffering from appear related to a bilateral radiculopathy resulting from the lumbar spine and related L5/S1 disc pathology. The Veteran experienced low back pain extending across the lower lumbar area and extending into both of his lateral/posterior upper legs. He noted continued numbness and tingling in both of his feet which had not improved. The Veteran underwent a VA examination in April 2013. The Veteran reported having severe and present pain virtually every day since 1992. He had chronic pain in the low back pain with radiation down both posterior leg and ankle. His symptoms never totally resolve and often worsen. An MRI in February 2010 demonstrated degenerative disc disease with nerve root fragments. The Veteran reported flare-ups as he had pain on a daily basis which sometimes worsened. He frequently missed work secondary to his back pain and had missed as much as 30 days in the year due to back pain. On examination, forward flexion was from 0 to 45 degrees with painful motion beginning at 40 degrees. Extension was from 0 to 10 degrees with painful motion beginning at 10 degrees. Right and left lateral flexion was from 0 to 20 degrees with painful motion beginning at 20 degrees. Right and left lateral rotation was from 0 to 25 degrees with painful motion beginning at 25 degrees. The Veteran was able to perform repetitive-use testing with repetitions. Post-test forward flexion ended at 45 degrees, extension ended at 10 degrees, right and left lateral flexion ended at 20 degrees and right and left lateral rotation ended at 20 degrees. He had additional limitation in range of motion of the back following repetitive-use testing as well as functional loss and/or functional impairment of the thoracolumbar spine. He had less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing or weight-bearing. His lumbar spine was painful to palpation. He did not have guarding or muscle spasm of the back. His muscle strength testing was normal and he did not have atrophy. His reflexes were all normal. His sensory examination noted decreased sensation in the bilateral lower leg/ankle and feet. He also had diminished pinprick sensation to the bottom of both feet. His straight leg raising test was negative. He had no other signs or symptoms due to radiculopathy. The Veteran had intervertebral disc syndrome of the thoracolumbar spine which resulted in less than 1 week of incapacitating episodes over the past 12 months. He used a brace to support his back and a cane to help support his walking on a daily basis. No arthritis was documented and he did not have a vertebral fracture. The Veteran reported that he missed 0 to 35 days per year due to incapacitating back pain. He stated that he was recently laid off from a teaching job partly due to missing work. The Veteran underwent a VA spine examination in August 2013. It was noted that the Veteran had a diagnosis of a lumbar strain with no radiculopathy found on the examination. The Veteran reported flare-ups sometimes with stiffness and chronic pain. These flare-ups occurred 8 to 10 times per year and lasted 2 to 3 days. When flare-ups occurred, he put himself to bed or took it easy. On examination, forward flexion was from 0 to 70 degrees with objective evidence of painful motion beginning at 40 degrees. Extension was from 0 to 20 degrees with objective evidence of painful motion beginning at 20 degrees. Right and left lateral flexion and right and left lateral rotation were from 0 to 20 degrees with objective evidence of painful motion beginning at 20 degrees. The Veteran indicated that he was unable to perform repetitive-use testing because his back pain was so severe. The Veteran had additional functional loss such as less movement than normal and pain on movement. He had pain but it did not significantly limit his functional ability. Pain could significantly limit functional ability during flare-ups or after repeated use over time but the examiner was unable to express range of motion in degrees during a flare-up or after repeated use as the Veteran could not replicate the range of motion. He did not have localized tenderness or pain to palpation for joints and did not have guarding or muscle spasms. His muscle strength testing was normal and his reflexes were normal. His sensory examination was normal as there was normal sensation to pin prick, vibration and coldness. The examiner noted that there was no evidence of foot issues such as ulceration or evidence of sensory deficits. There was no radicular pain or signs of radiculopathy. The examiner indicated that the Veteran did not have IVDS. He regularly used a cane and a brace. No arthritis was documented. The examiner found that the Veteran's back disability did not impact his ability to work as he could not see why the Veteran could not work. The examiner also noted that there seemed to be some symptom magnification during the examination and observation afterwards. Per the April 2017 Board remand instructions, the Veteran underwent a VA examination in July 2017. The examiner noted that the Veteran had diagnoses of a chronic lumbosacral strain and chronic mild lumbar degenerative disc disease. The Veteran reported having chronic bilateral lumbar back pain which increased with bending and lifting as well as prolonged standing and walking. He had no surgery and no radicular symptoms into the lateral thigh, leg or foot. He had undergone injections to his back with little success. He reported having no flare-ups but did report having functional loss and functional impairment. Forward flexion was from 0 to 25 degrees. Extension was from 0 to 10 degrees. Right and left lateral flexion was from 0 to 10 degrees. Right and left lateral rotation was from 0 to 25 degrees. The abnormal range of motion contributed to functional loss as the Veteran was unable to bend and lift and the pain noted on the examination caused functional loss. There was evidence of pain with weight bearing and bilateral lumbar tenderness. There was no guarding or muscle spasm. The Veteran was able to perform repetitive use testing with at least 3 repetitions and there was no additional loss of function or range of motion after 3 repetitions. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as flare-ups of the Veteran's back disability were not present at the time of the examination. In the absence of the Veteran's flare-ups at examination, the examiner found that it would be mere speculation to express in terms of the degrees of additional range of motion loss due to pain, weakness, fatigability or incoordination. Muscle strength testing was normal and there was no muscle atrophy. Reflexes and sensory examinations were normal. The Veteran did have moderate radiculopathy of the bilateral sciatic nerve. The Veteran did not have IVDS or ankylosis of the lumbar spine. The Veteran's lumbar spine disability impacted his ability to work as he was unable to engage in prolonged standing and walking as well as repetitive bending and lifting. Period Prior to July 7, 2017 As noted above, the Veteran filed an increased rating claim that was received by VA on December 302, 008. The Veteran's current low back disability is rated as 10 percent disabling for the period prior to April 19, 2013 and is rated as 20 percent disabling for the period from April 19, 2013 to July 6, 2017. Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment and flare-ups at his April 2009 VA examination, the Board finds that when affording the Veteran the benefit of the doubt, that a 20 percent rating is warranted for the Veteran's service-connected low back disability for the period from December 30, 2008 to July 6, 2017. The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). For the period prior to April 19, 2013, such impairment was not documented as forward flexion of the thoracolumbar spine on VA examination in April 2009 was from 0 to 90 degrees with pain beginning at 70 degrees. However, the April 2009 VA examiner also reported that the Veteran had "flare-ups of his pain on a daily basis that cause him to lie down and prop his feet up". While the examiner failed to opine as to whether pain could significantly limit functional ability during flare-ups or when it was used repeatedly over a period of time and provide such limitations in terms of degrees, the Board finds that a 20 percent rating is warranted based on the reported symptomatology of the Veteran's reported functional impairment and flare-ups at his April 2009 VA examination. Therefore, in consideration of pain, weakness, and fatigue, the Board finds that a 20 percent rating, effective December 30, 2008 is warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher evaluation in excess of 20 percent for the period prior to July 7, 2017 for a lumbar spine disability. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent at any time relevant to the decision as the Veteran has not met the criteria under the general rating code. Regarding the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). Such impairment was simply not documented as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although it was noted on the April 2013 and August 2013 VA examination reports that the Veteran exhibited pain on lumbar spine motion and had additional loss of motion due to pain, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Since flexion has not been limited to 30 degrees or less even after repetitive use; and the Veteran's spine is not ankylosed since he has demonstrated the ability to flex, extend, and laterally flex and rotate, the criteria for a rating in excess of a 20 percent evaluation have not been met. Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his low back disability. The Board notes that the April 2013 VA examiner noted that the Veteran reported flare-ups as he had pain on a daily basis which sometimes worsened. The Veteran also reported that he frequently missed work secondary to his back pain and had missed as much as 30 days in the year due to back pain. Additionally, the August 2013 VA examiner noted that the Veteran reported flare-ups sometimes with stiffness and chronic pain. These flare-ups occurred 8 to 10 times per years, lasted 2 to 3 days and when flare-ups occurred, the Veteran put himself to bed or took it easy. While the April 2013 VA examiner did not provide range of motion estimates in degrees regarding flare-ups and the August 2013 VA examiner did not provide range of motion estimates in degrees regarding flare-ups or after repetitive use over time, such is understandable. Notably, while the April 2013 VA examiner did not provide range of motion estimates in degrees regarding flare-ups, the Veteran was able to perform repetitive-use testing with repetitions and the noted range of motion estimates in degrees after repetitive use over time were only slightly more limited than these motions prior to repetitive use testing. Regarding the August 2013 VA examination, the VA examiner noted that he was unable to express range of motion in degrees during a flare-up or after repeated use as the Veteran could not replicate the range of motion. The Board finds these explanations adequate for why the examiners could not offer range of motion estimates. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication of such by the examiner or report of such by the Veteran, neither of which is present in this case. Additionally, while on the April 2013 VA examination the Veteran reported flare-ups as he had pain on a daily basis, only 4 months later, the August 2013 VA examiner noted that the Veteran reported flare-ups that occurred only 8 to 10 times per years and lasted 2 to 3 days which required the Veteran put himself to bed or to take it easy. Notably, during these flare-ups there is no indication that the Veteran contacted his healthcare provider. Thus, the Veteran's flare-ups were relatively infrequent and fairly short in duration based on the reported frequency and duration of such episodes on VA examination in August 2013. In addition to testing, the Veteran had been asked to describe functional loss and impairment in various situations and he had not identified that he has loss of motion to the degree required for a higher rating in excess of 20 percent for the period prior to July 7, 2017. The Board again acknowledges that for this time period, the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that he has functional impairment, pain and limited motion as demonstrated by the April 2009, April 2013 and August 2013 VA examinations. See DeLuca, supra. The Board further finds that the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for evaluations in excess of 20 percent for this time period. The Board notes that for this period, there is no evidence of muscle atrophy or guarding. Also, while the August 2013 VA examiner reported that the Veteran was unable to perform repetitive use testing because "his pain is so severe", the Board notes that the Veteran was able to perform repetitive use testing on the April 2013 VA examination which was not only was only 4 months before the August 2013 VA examination, but also demonstrated more severe range of limitation of motion findings. Additionally, on the most recent VA examination in July 2017, the Veteran was again was able to perform repetitive use testing. Significantly, the August 2013 VA examiner also found that the Veteran's back disability did not impact his ability to work as he could not see why the Veteran could not work. The examiner also noted that there seemed to be some symptom magnification during the examination and observation afterwards. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine.. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. Simply put, after taking into account the medical findings and the lay statements the evidence does not suggest that motion is limited to the requisite degree for a higher rating at any point during this time period. Therefore, even with the reports of flare-ups, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 20 percent rating for the period prior to July 7, 2017. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. Thus, the weight of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic findings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2017). Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. On VA examination in April 2009, the Veteran complained of daily flare-ups of back pain that caused him to seek self-imposed bedrest when he returned home from his day's work. The Board notes that on this examination however, there is no evidence of bed rest as prescribed by a doctor. Additionally, the April 2013 VA examiner indicated that the Veteran's intervertebral disc syndrome of the thoracolumbar spine resulted in less than 1 week of incapacitating episodes over the past 12 months while the August 2013 VA examiner noted that during the past 12 months, there were no incapacitating episodes for the thoracolumbar spine region. Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected thoracic spine disability because the evidence of record does not document incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. The Board notes that the Veteran demonstrated some sensory deficit as multiple VA examiners noted lower extremity sensory deficits. As a result, in a May 2009 rating decision, the RO granted service connection for left lower extremity radiculopathy at a 10 percent disability evaluation and in a January 2015 decision, the Board granted service connection for right lower extremity radiculopathy at a 10 percent disability evaluation. However, the Veteran has not disagreed with the May 2009 or February 2015 grants of separate evaluations for right and left lower extremity radiculopathy at 10 percent disability evaluations. Accordingly, these issues are not before the Board. In sum, an evaluation in excess of 20 percent rating for a low back disability for the period prior to July 7, 2017 is not warranted. Accordingly, the Board finds that the evidence supports the assignment of a 20 percent rating for the period from December 30, 2008 to July 6, 2017 for a low back disability. However, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for the period prior to July 7, 2017 for a low back disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Period Since July 7, 2017 Considering the pertinent evidence, the Board finds that a rating greater than 40 percent for the Veteran's low back disability is not warranted for the period since July 7, 2017. The Board notes that in order to assign a higher rating in excess of 40 percent based on limitation of motion, the record must establish that ankylosis is present. In this regard, the evidence simply does not show any ankylosis of the lumbar spine. The July 2017 VA examiner specifically indicated that the Veteran does not have ankylosis. Moreover, the aforementioned range of motion findings do not demonstrate that the joint was immobile or fixed in place. The Board notes again that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990). As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that a rating in excess of 40 percent under the General Rating Formula is not warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 40 percent for the Veteran's service-connected low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the VA examiner found objective evidence of pain on range of motion; however, the examiner did not find additional limitation of motion after multiple repetitions of range of motion which would warrant a 40 percent evaluation. The July 2017 VA examination report also noted that the Veteran's back problems impacted his ability to work as he was unable to engage in prolonged standing and walking as well as repetitive bending and lifting. However, the examination also revealed normal muscle tone with no evidence of muscle atrophy. In essence, the Veteran's restricted activities appear to be mainly due to painful motion, which is contemplated in the current 40 percent rating. Indeed, the current 40 percent rating is for favorable ankylosis of the entire thoracolumbar spine or for forward flexion of less than 30 degrees. As the Veteran does not have favorable ankylosis of the entire thoracolumbar spine and has flexion of less than 30 degrees with no decrease of motion on repetition, the current 40 percent rating clearly contemplates and encompasses the Veteran's degree of functional loss. Notably, the Veteran has indicated that he experienced flare-ups that impacted the function of his back. However, the Veteran was notably able to perform repetitive use testing with at least 3 repetitions and the VA examiner indicated that he would have to resort to mere speculation to determine the additional range of motion loss based on flare-ups not observed and there was no additional loss of range of motion with repetitive use testing at examination. While the July 2017 VA examiner did not provide range of motion estimates in degrees regarding flare-ups or after repetitive use over time, such is understandable. Notably, the July 2017 VA examiner explained that an estimate could not be provided and would be speculative as the examination was not performed during a flare-up or after repetitive use over time. The Board finds these explanations adequate for why the examiner could not offer range of motion estimates. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication of such by the examiner or report of such by the Veteran, neither of which is present in this case. Additionally it was noted again that the Veteran did not have additional functional limitation in his range of motion after repetitive use testing. Moreover, from the record, there is no evidence or allegation that the Veteran's previously reported flare-ups actually resulted in an ankylosed spine and, as addressed below, there is no indication of physician prescribed bed rest. Therefore, even if the additional limitation of motion during such flare-ups were extreme, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 40 percent rating under the rating criteria. Overall, the Board finds that the medical evidence is consistent with no more than a 40 percent rating under the General Rating Formula for the period since July 7, 2017. Since the medical evidence does not support the assignment of the next higher, 50 percent, rating under the General Rating Formula, it logically follows that no higher rating under the General Rating Formula is assignable. In reaching this conclusion, the Board has considered the Veteran's complaints on examination, but does not find them more probative than the objective medical findings. Regarding an evaluation in excess of 40 percent based on incapacitating episodes, the July 2017 VA examiner specifically noted that there was no evidence of intervertebral disc syndrome and the record contains no evidence showing that the Veteran had been prescribed bedrest for this period as required by the regulation. As noted above, for the purposes of evaluating intervertebral disc disease based on incapacitating episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc disease that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. In short, the medical evidence simply does not indicate the Veteran's spine is ankylosed (frozen) or that his low back disability causes incapacitating episodes amounting to at least six weeks per year. Indeed, while the Veteran has reported significant back pain, there is no evidence or suggestion that a physician prescribed bed rest at any time during this period. Thus, the Veteran has not incurred incapacitating episodes of at least six weeks in the previous year sufficient to warrant a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Finally, the Board also acknowledges again that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. The Board notes that the July 2017 VA examiner indicated that the Veteran had moderate incomplete paralysis of the sciatic nerve of the lower extremity. As a result, in the October 2017 rating decision, the RO increased the Veteran's ratings for right and left lower extremity radiculopathy from 10 percent ratings to 20 percent disability ratings for the period since July 7, 2017 under Diagnostic Code 8520. As noted above the July 2017 VA examiner specifically described the severity of the Veteran's radiculopathy as moderate and there is no indication that incomplete paralysis is more than moderate for the time since July 7, 2017 to warrant disability ratings in excess of 20 percent. Moreover, the Veteran has not disagreed with the October 2017 rating decision which granted increased 20 percent disability ratings for the period since July 7, 2017 for right and left lower extremity radiculopathy disabilities. For all the foregoing reasons, the Board finds that the claim for a rating in excess of 40 percent since July 7, 2017 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to a 20 percent for a low back disability for the period from December 30, 2008 to July 7, 2017, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent for a low back disability for the period since December 30, 2008 is denied. Entitlement to a rating in excess of 40 percent for the period since July 7, 2017 for a low back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs