Citation Nr: 1827697 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 12-07 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran; Veteran's Spouse ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1986 and from November 1986 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 10 percent disability rating for lumbar strain. In November 2014, the Veteran testified during a hearing before the undersigned Veterans Law Judge by videoconference; a transcript of that hearing is of record. In January 2015 and May 2017, the Board remanded this matter for further development. FINDING OF FACT For the entire period on appeal, the Veteran's low back disability was manifested by flexion to greater than 60 degrees, with pain, and combined range of motion to greater than 120 degrees, with no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis of the thoracolumbar spine, or incapacitating episodes requiring medically prescribed bed rest due to intervertebral disc syndrome. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, VA's duty to notify was satisfied by way of November 2009 and March 2010 letters to the Veteran. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran and the appellant. Neither the Veteran nor the appellant identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate the appeal. Additionally, the Board finds that there has been substantial compliance with its previous remand directives, to include obtaining outstanding records and providing the Veteran with VA examinations. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Rating The Veteran contends that he is entitled to a higher disability rating for his low back disability, which is currently rated at 10 percent disabling under C.F.R. § 4.71a, Diagnostic Code 5237 (lumbosacral or cervical strain). A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243. All service-connected spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Diagnostic Code 5243 provides that intervertebral disc syndrome can be evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating 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. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 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. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Diagnostic Code 5242 refers to Diagnostic Code 5003 (degenerative arthritis), and under 5003 degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242. However, when the limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected, to be combined, not added, under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the cervical vertebrae, the dorsal vertebrae (also known as the thoracic vertebrae), and the lumbar vertebrae, are considered groups of minor joints. 38 C.F.R. § 4.45(f). Under the incapacitating episodes rating formula, a 10 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). It is the intention 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. Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. B. Factual Background A February 2008 Naval treatment record shows that the Veteran reported low back pain and back stiffness in the lower region. He denied neurological symptoms. The Veteran was afforded a VA examination in March 2008. He reported spasms and pain in the low back area. The Veteran denied urinary and fecal incontinence, erectile dysfunction, numbness, paresthesias, and leg or foot weakness. He endorsed a history of decreased motion, stiffness, and spasms. He reported daily pain of a severity of 6/10 precipitated by prolonged sitting or standing. He reported radiating pain down the bilateral sides of the low back to the back of the mid-thigh. He reported flare-ups of severe pain twice per week with additional functional impairment of decreased mobility/ability to complete tasks and decreased sitting. On examination, there was evidence of pain with motion and tenderness, but not severe enough to result in abnormal gait or abnormal spinal contour. The Veteran's posture and gait were normal, and there was no evidence of abnormal spinal curvatures. Motor, sensory, and reflex exams were all normal, and there was no evidence of ankylosis. Range of motion testing revealed active flexion to 75 degrees, with pain at 29 degrees, and passive flexion to 75 degrees, with pain at 30 degrees; active and passive extension to 30 degrees, with pain at 20 degrees; active and passive left lateral flexion to 40 degrees, with pain at 20 degrees; active and passive right lateral flexion to 35 degrees, with pain at 20 degrees; and active and passive left and right lateral rotation to 30 degrees, with pain at 20 degrees. After repetitive use, flexion decreased to 70 degrees and left lateral flexion decreased to 35 degrees. The examiner noted that the Veteran was employed fulltime and that the Veteran's lumbar strain had significant effects on his usual occupation in that he had decreased mobility, problems with lifting and carrying, and pain. A March 2009 Naval treatment record shows that the Veteran reported low back pain with radiation to the right leg. X-rays were unremarkable. An August 2009 Naval MRI showed "no significant central canal or neuroforaminal stenosis." During an August 2009 follow-up to review the MRI results, the Veteran's gait was normal, patellar reflexes were normal, straight leg raises were negative, and no spasm of the paraspinal muscles were noted. The diagnosis was sciatica and lower back pain. The Veteran was afforded a VA examination in March 2010. The Veteran reported constant severe pain in the low back with increased pain into both legs. He endorsed numbness and paresthesias, but denied urinary symptoms, fecal incontinence, and erectile dysfunction. The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. He reported constant, moderate to severe, aching and sharp pain of the low back radiating into the thighs and back of the legs. The Veteran denied flare-ups and incapacitating episodes. He reported that he used a back brace. On examination, the Veteran's posture was normal, but his gait was slow and antalgic. There were no abnormal spinal curvatures and no evidence of ankylosis. There was objective evidence of pain with motion and tenderness, but not severe enough to be responsible for abnormal gait or abnormal spinal contour. Detailed motor and sensory exams were normal. A reflex exam showed hypoactive reflexes with knee jerk and absent reflexes with ankle jerk. Active range of motion testing revealed forward flexion to 70 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 15 degrees, and left and right lateral rotation to 30 degrees. There was objective evidence of pain on active range of motion and following repetitive motion, but there was no additional limitation of motion after three repetitions. Passive range of motion was unchanged from active range of motion. Lasegue's sign was negative. The examiner noted that the Veteran was employed fulltime at a desk job and that he reported losing two weeks from work during the past twelve month period. The examiner diagnosed the Veteran with lumbar strain and noted that there was "no objective evidence of lumbosacral radiculopathy." A July 2010 Naval treatment record shows that the Veteran denied tingling and numbness of his feet. A neurological exam showed normal sensation, no motor dysfunction, and no peripheral neuropathy. During the November 2014 Board hearing, the Veteran testified that his back pain and spasms increase with physical activity, such as mowing the lawn. He also reported radiating pain to his legs. An August 2015 Naval treatment record shows that the Veteran reported a five day history of severe back pain. He indicated that he was unable to move over the weekend, but was moving better currently. He denied numbness or tingling. He reported occasional radiating of pain down his right leg to the knee, but none currently. On examination, there was tenderness to palpation of the paravertebral muscles bilaterally, and range of motion was decreased due to pain. There was no evidence of muscle spasms, and straight-leg raising testing was negative bilaterally. The Veteran's mobility was not limited. Sensory, motor strength, and reflex exams were normal. The Veteran was afforded a VA examination in February 2016. The Veteran reported low back pain precipitated by activity, such as carrying three to four grocery bags. He also reported that if he sits in one place for too long, pain radiates to his hips. He indicated that his low back "hurts all the time." He reported missing five or six days of work due to his low back disability in the past year. He denied having had any periods of prescribed back rest or activity limitation. The Veteran reported that he worked full time in a clerical position. Range of motion testing revealed forward flexion to 85 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Pain was noted with forward flexion, right lateral flexion, and right lateral rotation, and the pain caused functional loss. Specifically, there was evidence of discomfort from 80 to 85 degrees of forward flexion and from 25 to 30 degrees of right lateral flexion and rotation. There was no evidence of pain with weight bearing. The right paraspinous musculature was mildly tender to palpation, but there was no corresponding visible or palpable signs of muscle spasm present. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that it was impossible to state, without undue speculation, whether pain, fatigability, or incoordination could significantly limit functional ability when the spine is used repeatedly over a period of time because during the current examination, "there is minimal restriction to repeated ROM (minimum of three repeats for each direction)-even in presence of discomfort." There was no evidence of guarding or muscle spasm. Muscle strength, reflex, and sensory exams were normal, and a straight leg raising test was negative. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis, and the Veteran did not have any other neurologic abnormalities or findings related to his low back disability. The examiner indicated that the Veteran's low back disability impacted his ability to work in that "[a]ctivity involving physical stress/strain on lower back-such as that which would require straining to lift heavy objects or prolonged standing/sitting WITHOUT breaks-would most likely result in increased lower back discomfort." (emphasis in original). The examiner rendered a diagnosis of lumbar strain with underlying DDD/DJD; no objective evidence for active radiculopathy. The Veteran was afforded a VA examination in October 2017. He reported daily low back pain, which he described as "more of muscle tightness and soreness." He indicated that he takes muscle relaxants and pain pills infrequently, sometimes once in two to three months. He denied flare-ups, and he reported nothing suggestive of radiculopathy or radiating pain "as he point[ed] to localized pain in the lower LS region 4 cm either side of the midline as muscle spasms." He reported tingling numbness in both feet and ankles, which he clarified was new. The Veteran indicated that he was employed fulltime in a clerical position not involving strenuous activity. He also indicated that activity involving lifting heavy objects or prolonged sitting or standing without breaks increases his low back discomfort and pain. On examination, the Veteran was ambulatory without assistive devices. Range of motion testing revealed forward flexion to 80 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Pain was not noted on examination, and there was no evidence of pain with weight bearing. There was no pain on passive range of motion; passive range of motion was unchanged from active range of motion; and there was no evidence of pain when the back was used in non-weight bearing. There was no objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion with three repetitions. There was no evidence of guarding or muscle spasm. Muscle strength and reflex exams were normal. The Veteran had decreased sensation of the lower leg/ankle and foot/toes bilaterally. The examiner indicated that this subjective decreased sensation was a peripheral neuropathy condition "not due to back condition," but was consistent with a history of "long standing (8-10 years per [V]eteran)" diabetes mellitus, type II and vitamin B12 deficiency. A straight leg raising test was negative, and there was no evidence of radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis, and the Veteran did not have any other neurologic abnormalities or findings related to his low back disability. The examiner rendered a diagnosis of lumbar strain and multi-level DDD. The examiner also indicated that there was no evidence of radiculopathy or sciatica and that the bilateral, symmetric, stocking distribution, sensory peripheral neuropathy was a new incidental finding that was not related to the Veteran's low back disability and was not due to radiculopathy or sciatica. The examiner opined that there was no evidence of neurological manifestations of the Veteran's low back disability, to include no evidence of bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. C. Analysis Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating in excess of 10 percent were not met at any point during the rating period. In order to warrant the next higher rating of 20 percent under the General Rating Formula, the evidence must show 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. In this case, the evidence does not indicate that forward flexion of the thoracolumbar spine was limited to 60 degrees or less, or that the combined range of motion of the thoracolumbar spine was 120 degrees or less. During the March 2008 VA examination, forward flexion was measured at 70 degrees (after repetition) and the Veteran's combined range of motion was measured at 220 degrees (after repetition). During the March 2010 VA examination, forward flexion was measured at 70 degrees, with pain, and the Veteran's combined range of motion was 180 degrees, with pain. During the February 2016 VA examination, forward flexion was measured at 85 degrees, with pain, and the Veteran's combined range of motion was measured at 235 degrees, with pain. Finally, during the October 2017 VA examination, forward flexion was measured at 80 degrees, and the Veteran's combined range of motion was measured at 230 degrees, with no pain noted. Nor does the evidence indicate that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Although tenderness was noted during the March 2008 and March 2010 VA examinations, the VA examiners found that it was not severe enough to be responsible for abnormal gait or abnormal spinal contours. Similarly, the February 2016 VA examiner noted mild tenderness to palpation, but indicated "no corresponding visible or palpable signs of muscle spasm," and the October 2017 VA examiner noted no guarding or muscle spasm. The evidence also shows that the Veteran's low back disability was not manifested by favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine, as defined in the notes to the General Rating Formula. Accordingly, a rating greater than 10 percent is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a. In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. For a 20 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 30 and 60 degrees, or the combined range of motion must be less than 120 degrees, or there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Moreover, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, but pain alone does not warrant a higher disability rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). In order to assign a higher rating based on functional loss due to pain, the pain "must actually affect some aspect of 'the normal working movements of the body.'" Id. at 43 (quoting § 4.40). In Mitchell, the Court agreed that pain alone as a basis for a higher rating would produce such "absurd results" as for example where a claimant who experiences very slight pain throughout the range of motion of the knee would receive a 50 percent disability rating under DC 5261 and a 30 percent disability rating under DC 5260, whereas a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to 20 degrees would only receive disability ratings of 20 percent and 30 percent respectively. Id. Here, while the Veteran reported back pain and limited range of motion, these symptoms are specifically contemplated by his rating. Moreover, although there was objective evidence of pain with motion during VA examinations, there is no persuasive evidence of record that the Veteran's subjective complaints of pain rise to the level of an individual who actually experiences functional loss at the level of 20 percent during this period. In this regard, even after repetitive motion, the Veteran's flexion was, at worst, just 20 degrees from normal in March 2008, and it was just 5 and 10 degrees from normal during the February 2016 and October 2017 VA examinations, with no additional functional loss or limitation in range of motion with repetitive testing. Thus, while the Board notes the Veteran's complaints of pain, the evidence does not show that pain causes additional functional loss beyond that recorded on range of motion testing. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. Similarly, although the evidence shows that the Veteran had additional functional loss during flare-ups and with repetitive use due to pain, as discussed above, the Veteran's range of motion was at worst, just 20 degrees from normal, even with consideration of pain and other such factors. Furthermore, at no time on appeal, even considering evidence of pain, did the Veteran's combined range of motion come close to approximating less than 120 degrees, nor did the Veteran exhibit muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. Thus, even with consideration of pain and other such factors, the Board finds that the Veteran's rating of 10 percent adequately encompasses the Veteran's functional impairment during flare-ups and with repeated use over time. Moreover, even acknowledging that the Veteran's pain may at times have resulted in additional functional loss than that objectively demonstrated, especially during flare-ups, and even when such functional limitations are considered, the evidence does not reflect functional impairment comparable to forward flexion of the thoracolumbar spine less than 60 degrees; combined range of motion of the thoracolumbar spine less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Accordingly, the Veteran's disability picture does not meet or approximate the criteria described for a rating greater than 10 percent under the General Rating Formula based on limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. The General Rating Formula also indicates that associated neurologic abnormalities are to be rated separately under the appropriate diagnostic code. Here, while the Veteran has complained of radiating pain to the lower extremities and the Board notes the diagnosis of sciatica in 2009, the General Rating Formula contemplates disability of the low back, to include pain, "whether or not it radiates." Moreover, despite the Veteran's subjective complaints, objective testing for radiculopathy has been negative throughout the appeal period. In this regard, motor, sensory, and reflex examinations were normal during the March 2008 VA examination. Significantly, objective testing was normal in 2009 despite the sciatica diagnosis. During the March 2010 VA examination, motor and sensory exams were normal. Although a reflex exam was hypoactive with knee jerk and absent with ankle jerk, the examiner stated that there was no objective clinical evidence of lumbosacral radiculopathy. Similarly, during the February 2016 VA examination, muscle strength testing was normal, reflex and sensory exams were normal, and straight leg raising tests were negative bilaterally. The VA examiner specifically noted that there was no objective evidence for active radiculopathy. Finally, during the October 2017 VA examination, the Veteran reported "nothing suggestive of radiculopathy or radiating pains as he point[ed] to localized pain in the lower LS region." The Veteran did report tingling numbness in both feet and ankles, but clarified that the leg numbness was new. On examination, muscle strength and reflexes were normal, and straight leg raising testing was negative. Although there was decreased sensation of the lower leg/ankle and foot/toes, the examiner indicated that the subjective light touch was a peripheral neuropathy condition not due to the back condition, but rather consistent with the Veteran's history of long standing diabetes and vitamin B12 deficiency. The examiner concluded that there was no evidence of sciatica or radiculopathy. The examiner also opined that there was no evidence of neurological manifestations of the Veteran's low back disability, to include no evidence of bowel or bladder impairment, erectile dysfunction, or lower extremity radiculopathy. Based on the foregoing, the Board finds that a preponderance of the evidence shows that the Veteran does not experience any neurologic abnormalities associated with his low back disability, to include lower extremity radiculopathy. Accordingly, the Board finds that a separate rating is not warranted for any objective neurological symptoms. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 20 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In this case, the evidence of record does not show that the Veteran had incapacitating episodes as defined by VA regulations during this period. Although the Veteran indicated that he had flare-ups of back pain, there is no evidence from any of the Veteran's medical providers that bedrest was prescribed by a physician for treatment of his spine disability. In this regard, the evidence shows that the Veteran's back condition has been treated conservatively with pain medications and chiropractic and physical therapy. Further, the February 2016 VA examiner specifically addressed the issue of incapacitating episodes, indicating that the Veteran "denies having had any periods of prescribed back rest/activity limitation." The Board accordingly finds that there is no credible evidence indicating that the Veteran's reported low back flare-ups resulted in incapacitating episodes under the criteria set forth in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes sufficient to warrant a higher rating based upon incapacitating episodes. Therefore a disability rating in excess of 10 percent under Diagnostic Code 5243 is not warranted. The Board recognizes the Veteran's sincere belief that he is entitled to a higher rating. The Veteran is competent to report his symptoms and credible in his belief that his back disability warrants a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the back impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Thus, while the Board acknowledges the Veteran's reports of back symptomatology, especially exacerbations of back pain, the evidence in this case shows that the 10 percent rating assigned appropriately compensates the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.4; DeLuca. The Board has considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings discussed above are the most appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the Board finds that the 10 percent rating assigned for the Veteran's back disability is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the foregoing reasons, the Board finds that the claim for a higher rating 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 the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating in excess of 10 percent for a low back disability is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs