Citation Nr: 18159970 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 17-07 946 DATE: December 20, 2018 ORDER Entitlement to a restoration of a 40 percent rating for service-connected low back disability, effective January 1, 2017, is granted. Entitlement to a rating in excess of 40 percent for a low back disability is denied. FINDINGS OF FACT 1. An improvement in the Veteran’s service-connected low back disability was not adequately demonstrated by the evidence of record at the time of the October 2016 decision reducing the rating for that disability from 40 percent to 10 percent, effective January 1, 2017. 2. The Veteran’s lumbar spine disability does not result in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes requiring medically prescribed bed rest of at least 6 weeks. CONCLUSIONS OF LAW 1. The 40 percent rating for service-connected low back disability was not properly reduced and is restored, effective January 1, 2017. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5237 (2018). 2. The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1981 to March 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Rating Reduction – Low Back Disability The Veteran contends that the rating of his low back disability should not have been reduced from 40 percent to 10 percent, effective January 1, 2017. Specifically, he disagrees with the June 2014, June 2016, and September 2016 VA examination reports on which the reduction is based, asserting that it misrepresents the severity of the disability. In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence shows an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. VA regulations provide for specific notice requirements in instances where a reduction in rating is considered. 38 C.F.R. § 3.105 (e)(2018). When a rating reduction is considered and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105 (e) (2018). A proposed rating decision should set forth all of the material facts and reasons for the proposed reduction. 38 C.F.R. § 3.105 (e)(2018). The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e) (2018). Here, the Veteran was provided such notice in a June 2016 rating decision and June 2016 correspondence. A reduction of a rating generally must be supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a) (2012); Brown v. Brown, 5 Vet. App. 413 (1993). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical history to ascertain whether the recent examination was full and complete. 38 C.F.R. § 3.344 (a) (2018). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (2018). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b) (2018). The provisions of 38 C.F.R. § 3.344 (a) and 38 C.F.R. § 3.344 (b) apply to ratings which have continued for long periods at the same level, for 5 years or more. 38 C.F.R. § 3.344 (2018). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in those disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c) (2018), Collier v. Derwinski, 2 Vet. App. 247 (1992). Here, the Veteran’s low back disability was service connected in June 1996, and evaluated as 10 percent disabling effective March 7, 1995. Then, in an April 2000 rating decision, the Veteran’s low back disability was evaluated at 40 percent disabling effective November 26, 1999, or for a period of more than five years. Consequently, these ratings could not be reduced without compliance with the provisions of 38 C.F.R. § 3.344 (a) and (b) regarding stabilization of ratings. See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The stabilization of ratings regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown (Kevin) v. Brown, 5 Vet. App. 413, 416-21 (1993). The January 2000 VA examination used to initially increase the Veteran’s disability evaluation to 40 percent disabling reflects the medical opinion concerning the severity of the Veteran’s disability. At that time, the Veteran reported that he had constant low back pain that was aggravated on walking; that he had difficulty getting out of bed due to stiffness and pain in the back; and that the pain radiated to his right leg and upper back. Upon physical examination, the Veteran was noted to be healthy but overweight, standing 6 feet 3 inches tall and weighing 250 pounds. The Veteran had good posture and equilibrium. An examination of the lumbosacral spine revealed that there was normal lumbar lordosis. His pelvis was symmetrical and his muscle tone was good. There was no scoliosis. Range of motion testing was as follows: extension to 15 degrees, with pain; flexion to 65 degrees, with pain; bilateral lateral flexion to 20 degrees each, without pain; and bilateral lateral rotation to 10 degrees each, without pain. He was not shown to have any neurological deficiency of his lower limbs, bilaterally. He had straight leg raising to 55 degrees on the right and 70 degrees on the left, with pain on each. Diagnostic imaging studies showed the lumbosacral spine to be normal. Diagnostic studies of the lower extremities showed normal motor and sensory conduction. A June 2014 VA examination reflects that the Veteran reported the severity of his back had worsened. He reported daily use of a back brace and a tens unit. He stated he had stiffness and pain in the morning, and that it took a long time before he could move at all. He reported pain with sitting or standing for long periods. He reported he felt that his back bones were grinding. He stated he had difficulty with doing daily household chores. He endorsed spasms. He denied radicular symptoms, numbness, or tingling. He stated he did occasionally have pains in his gluteal region. He reported the spasms and “locking up” of his back was quite painful and difficult, and that the pain increased a few times a day. He reported he had constant daily pains, spasms, and denied flares. He stated that if he gets up and moves around the movement would loosen his back, but that any stationary position for a long period caused spasms. Upon physical examination, range of motion testing was as follows: flexion greater than 90 degrees, with pain at 30 degrees; extension to 20 degrees, with pain at 20 degrees; bilateral lateral flexion to 25 degrees, with pain at 15 degrees; bilateral lateral rotation to 20 degrees, with pain at 20 degrees. There was no additional limitation in range of motion after repetitive use testing. The examiner noted the Veteran had less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. There was localized tenderness or pain to palpation, and muscle spasms were shown. There was no guarding or muscle atrophy. Sensory examination of the extremities was normal, and the Veteran did not have radicular pain or any other symptoms due to radiculopathy. The Veteran did not have ankylosis. A June 2016 VA examination reflects that the Veteran reported he had flares of his back that manifested in increased back pain with prolong standing, sitting, walking, and running. He reported muscle spasms with repetitive bending or side to side twisting. Upon physical examination, range of motion testing was as follows: flexion to 90 degrees; extension to 20 degrees; and bilateral lateral flexion, and bilateral lateral rotation to 25 degrees each. Pain was noted on bilateral lateral rotation. There was no evidence of pain on weight-bearing. There was evidence of localized tenderness or pain on palpation on the paraspinous muscles along the lumbar spine. There was no additional limitation in range of motion after repetitive use testing. It was not shown that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. It was noted that pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was shown to be normal with the exception of the Veteran’s left ankle. The Veteran’s left ankle plantar flexion and dorsiflexion was shown to have active movement against some resistance. There was no muscle atrophy. The Veteran did not have ankylosis. A reflex examination showed the Veteran to have hypoactive deep tendon reflex of the left ankle. Sensory examination was shown to be normal. Straight leg raising test was negative. There was no radiculopathy or ankylosis. There were no other neurologic abnormalities. The Veteran did not have intervertebral disc syndrome (IVDS). The Veteran endorsed occasional use of a cane as an assistive device as a normal mode of locomotion. Of record is a July 2016 private evaluation submitted by the Veteran. At that time, the Veteran reported back pain, numbness, shooting pain down the back of his legs, numbness in his lower extremities, and locking up with prolonged sitting or standing. Upon physical evaluation, range of motion testing was as follows: flexion to 65 degrees; extension to 12 degrees; right lateral flexion to 19 degrees; left lateral flexion to 15 degrees; right later rotation to 18 degrees; and left lateral rotation to 10 degrees. Repetitive use testing was not performed because the pain was too severe. Guarding was shown. The Veteran’s gait was noted to be abnormal due to muscle spasms and guarding. He had abnormal spinal contour due to muscle spasm and guarding. Functional loss was as follows: less movement than normal; weakened movement; excessive fatigability; incoordination, an impaired ability to execute skilled movements smoothly; pain on movement; disturbance of locomotion; interference with sitting; interference with standing; and no repetitive motion. It was noted that repetitive motion caused the back to lock up. Muscle strength testing was shown to be abnormal resulting in a reduction in muscle strength. The Veteran did not have ankylosis. Reflexive examination was shown to be abnormal. Straight leg raising test of the right leg was positive, and the Veteran’s not able to perform the test with his left leg. Paresthesias and/or dysesthesias was shown in the lower extremities bilaterally. Numbness was shown in the lower extremities bilaterally. The evaluator noted moderate radiculopathy in the right lower extremity and severe radiculopathy in the left lower extremity. The evaluator diagnosed the Veteran with Veteran IVDS. The Veteran was shown to have incapacitating episodes, at least 4 weeks but less than 6 weeks in the previous 12 months. The evaluator noted the back stiffened up with standing short periods of time. The Veteran endorsed the use of a brace, cane, and tens unit. The evaluator noted the Veteran was unable to stand for long periods of time, unable to drive long distances, unable to sit for long periods of time, and unable to run. A September 2016 VA examination reflects the Veteran reported occasional pain radiating to his lower extremities when experiencing muscle spasms in the lower back. He endorsed flare-ups that manifested with increased back pain. He stated his back pain increased with prolonged standing, sitting, walking, and running. He had muscle spasms with repetitive bending or side to side twisting. Upon physical examination, range of motion testing was as follows: flexion to 80 degrees; extension to 15 degrees; and bilateral lateral flexion and rotation to 20 degrees each. The examiner noted that range of motion was outside of the normal range, but was normal for the Veteran because of truncal obesity. Range of motional was not shown to contribute to functional loss. There was no evidence of pain on weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the paraspinous muscle alongside the lumbar spine. There was no additional limitation in range of motion after repetitive use testing. It was not shown that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Guarding was not shown. Muscle spasm was shown but did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was shown to be normal. The Veteran did not have ankylosis. A reflex examination showed the Veteran to have hypoactive deep tendon reflex of the left ankle. Sensory examination was shown to be normal. Straight leg raising test was negative. There was no evidence of radiculopathy or ankylosis. There were no other neurologic abnormalities. The Veteran did not have IVDS. The Veteran endorsed occasional use of a cane and regular use of a brace as assistive devices as a normal mode of locomotion. Diagnostic imaging testing showed the Veteran to have mild to moderate neural formen narrowing at L4-5 and L5-S1 levels, secondary to degenerative facet joint arthritis, minimal progression. No significant central canal stenosis at any level, and no focal disc herniation. Functional impact was shown to limit the Veteran with heavy lifting, pushing, or pulling. An April 2017 VA examination reflects the Veteran reported flare-ups that manifested in pain so severe he could not get out of bed. He stated that every morning he had to apply heat to his back after taking medication, and that it took 45 minutes to an hour to get out of bed. He reported he was unable to perform sexual intercourse due to his back pain, and that he could no longer stand up straight. He reported that 5 to 7 days per month he had incapacitating episodes for 1 to 2 days due to pain and debility. He reported he had pain with prolonged standing or sitting. He reported pain that shot down the back of his legs, causing numbness. Upon physical examination, range of motion testing was as follows: flexion to 25 to 30 degrees; extension to -30 to -25 degrees; and bilateral lateral flexion and rotation to 0 degrees each. The examiner noted severe pain. There was evidence of pain with weight-bearing. There was objective evidence of localized tenderness at the lumbar spine paraspinous. There was no additional limitation in range of motion after repetitive use testing. It was shown that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time due to pain, lack of endurance, and incoordination. The Veteran reported he was restricted to bed during acute flares. The Veteran had muscle spasms and guarding that resulted in abnormal gat or abnormal spine contour. Muscle strength testing was shown to be normal. There was no muscle atrophy. Reflex examination showed the Veteran to have hypoactive deep tendon reflexes of the right knee, and bilateral ankle. Sensory examination showed the Veteran to have decreased sensation in the thighs, knees, ankles, and lower legs bilaterally. The Veteran had absent sensation in the feet and toes bilaterally. Straight leg raising test was negative bilaterally. The Veteran did not have radiculopathy, but did have neurologic abnormalities or findings. The Veteran did not have ankylosis. The Veteran did not have IVDS. The Veteran endorsed the constant use of a cane as an assistive device as a normal mode of locomotion. The examiner noted that the Veteran was unable to sit or stand for more than 10 to 15 minutes without having to change positions due to severe pain, and severe pain with flexion. The examiner also noted that the Veteran also had diabetes mellitus, which could cause the symptoms in his lower extremities, and that it was not possible to diagnose or determine the cause of the lower extremity symptoms without an MRI or EMG. A review of the record shows the Veteran has received continuing treatment from VA medical facilities for his low back disability. At those times, the Veteran reported varying pain intensities, ranging from 7 out of 10 and 9 out of 10. The Veteran consistently complained of numbness in his extremities. Notably, an October 2015 VA treatment record indicates the Veteran reported he had been having severe back problems, and that he was unable to do anything repetitive. He stated that his back would lock up if he was in any one position for an extended period of time. He endorsed muscle spasms. Moreover, a January 2017 VA treatment record indicates that the Veteran reported worsening of his back, with numbness shooting down, and an inability to walk while standing straight as due to his back. Finally, the June 2016 rating decision which proposed a reduction for the Veteran’s low back disability indicates the RO determined that as a result of the Veteran’s VA examinations, the Veteran was shown to have a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees, with localized tenderness not resulting in abnormal gait or spinal contour, and that a reduction was proper. The Board notes that even if true, this cannot alone be a basis for reduction. Following a review of the record, the Board finds, after resolving all doubt in the Veteran’s favor, that the reduction of a low back disability from 40 percent to 10 percent was not proper. As to the June 2014 VA examination, the examiner Veteran’s range of motion testing showed forward flexion of the thoracolumbar spine to 90 degrees, but with pain starting at 30 degrees. The Veteran’s combined range of motion was 200 degrees. Moreover, the examiner noted the Veteran had stiffness and pain in the morning that prevented him from moving his back at all for a period of time. Following the June 2014 VA examination, the Veteran was afforded another VA examination in June 2016. At that time, range of motion testing showed forward flexion of the thoracolumbar spine to 90 degrees. The Veteran’s combined range of motion was 210 degrees. Then, the Veteran submitted a private evaluation for his back in July 2016. At that time, forward flexion was shown to 65 degrees. The Veteran’s combined range of motion was 139 degrees. A September 2016 VA examination showed forward flexion of the thoracolumbar spine to 80 degrees. The Veteran’s combined range of motion was 175 degrees. The September 2016 VA examiner noted that the Veteran had abnormal range of motion that was normal for the Veteran due to truncal obesity. Finally, an April 2017 VA examination showed forward flexion of thoracolumbar spine to 25 to 30 degrees. The Board notes that the evidence of record casts doubt upon whether there was a permanent improvement in this disability under the ordinary conditions of life. Therefore, the Board finds there is not sufficient evidence to show actual improvement in the Veteran’s ability to function. In view of the foregoing, the Board finds that the evidence of record does not reflect that at the time of the reduction the Veteran had the type of improvement in his service-connected low back disability that would warrant a reduction in the assigned disability ratings, particularly as they had been in effect for more than 5 years. Accordingly, after resolving all doubt in the Veteran’s favor, the Board finds that the restoration of the 40 percent disability ratings for the Veteran’s low back disability is warranted. Increased Rating – Low Back Disability The Veteran contends that his symptoms of his low back disability are worse than contemplated by the rating currently assigned. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. § 4.1 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A recent United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board notes that the Veteran’s lumbar spine disability is rated pursuant to Diagnostic Code (DC) 5237, 38 C.F.R. § 4.71a. DC 5237 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DCs 5235-5243 (2017). Under 38 C.F.R. § 4.71a, DCs 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 40-percent rating is assigned when 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 assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100-percent rating is assigned when there is unfavorable ankylosis of the entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, DC 5242. The Court, citing Dorland’s Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure,” for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Under DC 5243, for IVDS, this disability is rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to DC 5243. Under the formula, a 40-percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60-percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The General Rating Formula for Diseases and Injuries of the Spine, provide further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides 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. See also Plate V, 38 C.F.R. § 4.71a. As Note (1) indicates, in addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. In Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc) the Court recognized that VA has broad discretion to dismember a claim and adjudicate the pieces in jurisdictionally separate proceedings. See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (“Bifurcation of a claim generally is within VA’s discretion.”). In this respect, consideration has been given to assigning separate compensable ratings for neurological impairment in either lower extremity. Here, the Board notes that there are no indications the Veteran’s lumbar spine manifests any neurological impairments, such as bowel or bladder impairments. Further, the Board notes that the Veteran filed a Notice of Disagreement in March 2018 for claims of entitlement to service connection for radiculopathy of the bilateral lower extremities, which is still being addressed by the RO. Therefore, at this time, the Board will not address the Veteran’s bilateral lower extremity neurological impairment in this decision. The Board finds that a rating in excess of 40 percent is not warranted. As discussed above, the medical evidence of record shows that the Veteran’s lumbosacral spine has never been ankylosed, either favorably or unfavorably. With regard to establishing loss of function due to pain, the provisions of the general rating schedule for spinal disorders are controlling whether or not there are symptoms of pain, and irrespective whether the pain radiates. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). See DeLuca. Here, however, the Veteran is now in receipt of the maximum evaluation for limitation of motion. In fact, the evaluation would be consistent with no appreciable motion. As such, further discussion of Sharp, Correia and DeLuca would serve no useful purpose and would not provide for a higher evaluation based upon limitation of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, the 40 percent rating adequately represents any functional impairment attributable to the disability at all relevant times. See 38 C.F.R. §§ 4.41, 4.10. Consideration has been given to assigning a rating under Diagnostic Code 5243, for IVDS based on incapacitating episodes rather than limitation of motion. The private July 2016 evaluation diagnosed the Veteran with IVDS, and the same evaluation shows the Veteran to have incapacitating episodes of at least 4 weeks, but less than 6 weeks. Therefore, the Board concludes that the low back disability does not warrant a higher rating based on incapacitating episodes, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a. Finally, in reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his low back disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain and stiffness in his back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to the presence of pain and the severity of such during his VA examinations and throughout the course of treatment. He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible. The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight where applicable. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for a low back disability, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel