Citation Nr: 20000554 Decision Date: 01/07/20 Archive Date: 01/03/20 DOCKET NO. 15-46 473 DATE: January 7, 2020 ORDER An effective date earlier than February 15, 2013, for the award of an increased, 20 percent rating for Ehlers-Danlos syndrome involving the left shoulder is denied. An effective date of January 31, 2013, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the left shoulder with recurrent dislocations is granted, subject to the law and regulations governing the payment of monetary benefits. An effective date of January 31, 2013, for the award of a separate, 30 percent rating for Ehlers-Danlos syndrome of the right shoulder with recurrent dislocations is granted, subject to the law and regulations governing the payment of monetary benefits. An effective date of January 31, 2013, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the left knee with instability is granted, subject to the law and regulations governing the payment of monetary benefits. An effective date of January 31, 2013, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the right knee with instability is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for chronic strain of the lumbosacral spine, to include restoration of a previously assigned 20 percent rating, is denied. FINDINGS OF FACT 1. In a final July 2010 rating decision, the regional office (RO) effectuated a June 2010 Board decision that granted service connection for bilateral shoulder and bilateral knee disabilities; the RO assigned a 10 percent rating for each shoulder and each knee affected by Ehlers-Danlos syndrome, effective June 1, 2007. 2. On February 15, 2013, VA received the Veteran’s claim for an increased rating for Ehlers-Danlos syndrome involving the left and right shoulder and left and right knee. 3. On January 31, 2013, a factually ascertainable increase in disability occurred involving Ehlers-Danlos syndrome of the left shoulder with recurrent dislocations. 4. On January 31, 2013, a factually ascertainable increase in disability occurred involving Ehlers-Danlos syndrome of the right shoulder with recurrent dislocations. 5. On January 31, 2013, a factually ascertainable increase in disability occurred involving Ehlers-Danlos syndrome of the left knee with instability. 6. On January 31, 2013, a factually ascertainable increase in disability occurred involving Ehlers-Danlos syndrome of the right knee with instability. 7. A chronic strain of the lumbosacral spine has been manifested at worst by arthritis confirmed by x-ray evidence; extension limited to 20 degrees with pain at the endpoint of each plane of motion; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 8. The reduction of the Veteran’s disability rating for chronic strain of the lumbosacral spine from 20 percent to 10 percent, effective January 8, 2014, did not result in a reduction of payment of compensation benefits; the March 2014 examination report was at least as full and complete as the July 2007 examination report, and the evidence clearly demonstrated material improvement in lumbosacral spine function that is reasonably certain to be maintained under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 15, 2013, for the award of an increased, 20 percent rating for Ehlers-Danlos syndrome involving the left shoulder have not been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. 2. The criteria for an effective date of January 31, 2013, but no earlier, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the left shoulder with recurrent dislocations have been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. 3. The criteria for an effective date of January 31, 2013, but no earlier, for the award of a separate, 30 percent rating for Ehlers-Danlos syndrome of the right shoulder with recurrent dislocations have been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. 4. The criteria for an effective date of January 31, 2013, but no earlier, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the left knee with instability have been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. 5. The criteria for an effective date earlier of January 31, 2013, but no earlier, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the right knee with instability have been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. 6. The criteria for a rating in excess of 10 percent for chronic strain of the lumbosacral spine, to include restoration of a previously assigned 20 percent rating, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to May 2007. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision. Effective Date Earlier 1. An effective date earlier than February 15, 2013, for the award of an increased, 20 percent rating for Ehlers-Danlos syndrome involving the left shoulder 2. An effective date earlier than February 15, 2013, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the left shoulder with recurrent dislocations 3. An effective date earlier than February 15, 2013, for the award of a separate, 30 percent rating for Ehlers-Danlos syndrome of the right shoulder with recurrent dislocations 4. An effective date earlier than February 15, 2013, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the left knee with instability 5. An effective date earlier than February 15, 2013, for the award of a separate, 20 percent rating for Ehlers-Danlos syndrome of the right knee with instability The Veteran contends that the increased rating for Ehlers-Danlos syndrome (EDS) involving the left shoulder and the separate ratings assigned for left and right shoulder dislocations and left and right knee instability, which are each associated with EDS, should be effective from May 31, 2007. For direct service connection, the effective date of compensation will be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (requiring VA to consider the evidence of disability during the period one year prior to the application in order to determine when a factually ascertainable increase in disability occurred). The “date of the claim” means the date of the application based upon which benefits are awarded, not the original claim for service connection. Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). In this context, the provisions of 38 U.S.C. § 5110 also refer to the date an application is received. While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and they are defined broadly to include “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. §§ 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. VA received the Veteran’s original service connection claim for disabilities including his shoulders, knees, and back in May 2007. Service connection was granted for a chronic lumbosacral strain and a 20 percent rating was assigned, effective June 1, 2007, which is the date following his separation from service. A September 2007 rating decision denied the claims for bilateral shoulder and bilateral knee disabilities. The Veteran appealed the initial rating assigned for his back disability and the denial of his service connection claims to the Board. In a June 2010 Decision, the Board denied a rating higher than 20 percent for the lumbosacral strain and granted service connection for bilateral shoulder and bilateral knee disabilities, finding that his preexisting EDS affecting these extremities had been aggravated during military service. A July 2010 rating decision effectuated the Board’s decision and assigned a 10 percent rating for each shoulder and each knee affected by EDS, effective June 1, 2007. The Regional Office (RO) notified the Veteran and his representative of the decision in an August 2010 letter. He did not initiate an appeal of the decision by filing a notice of disagreement (NOD) nor was new and material evidence pertinent to his shoulder or knees received within the one-year appeal period following the notice of decision. Therefore, the July 2010 RO decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. On February 15, 2013, VA received the Veteran’s claim for increased disability ratings for EDS involving each shoulder and each knee. Following a VA fee-basis examination, a March 2014 rating decision increased the disability rating for EDS of the left shoulder based on limitation of motion to 20 percent; continued the previously assigned ratings for EDS involving the right shoulder and both knees; and awarded additional disability ratings based on recurrent dislocations of each shoulder and instability of each knee also associated with EDS. The RO assigned an effective date of February 15, 2013, which is the date VA received the Veteran’s claim, for the increased rating and each additional disability rating assigned. In January 2016, the RO associated the Veteran’s VA treatment records with his claims file. On January 31, 2013, the Veteran presented for a primary care check-up and described having loose joints, stating he gets shoulder dislocations two or three times per week and dislocations of his knees approximately once per month. On examination, he had “reasonable range of motion of extremity joints.” In correspondence received with his May 2014 notice of disagreement, the Veteran expressed his belief that an earlier effective date was warranted for the increased and/or additional disability ratings. He asserted that after the Board granted service connection for shoulder and knee disabilities in June 2010, the RO should have performed an “up-to-date medical review” before rating his disabilities. He believes that if his EDS symptoms would have been evaluated in 2010, the ratings from March 2013 would have been granted. Having considered the evidence of record, an effective date of January 31, 2013, but no earlier is warranted for the ratings assigned for recurrent dislocations of each shoulder and for instability of each knee, all associated with EDS. Here, a VA treatment record dated within one year prior to receipt of the claim for increased ratings demonstrates a factually ascertainable increase in disability occurred based on the Veteran’s reports of recurrent right and left shoulder dislocations and right and left knee dislocations or instability of his knees. In fact, the symptoms he reported on January 31, 2013, were documented during the March 2014 fee-basis examination. Regarding the increased, 20 percent rating assigned for the left shoulder EDS based on limitation of motion, an effective date earlier than February 15, 2013, is not warranted. The January 31, 2013, VA treatment record documented “reasonable range of motion of extremity joints.” In comparison, during the March 2014 fee-basis examination, the Veteran’s left shoulder flexion was limited to 90 degrees with normal range of motion being 180 degrees. The January 2013 treatment record does not suggest a similar degree of impaired motion as was documented in March 2014. Finally, the assignment of a June 1, 2007, effective date for the award of the increased rating for the left shoulder and additional ratings for dislocations of each shoulder and instability of each knee is not warranted. After the RO issued the July 2010 rating decision that assigned initial ratings for EDS affecting each shoulder and each knee, the Veteran had an opportunity to initiate an appeal if he disagreed with that decision; however, VA received no further correspondence from the Veteran until receiving his current claim on February 15, 2013. The Board emphasizes that previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” For the Veteran to be awarded an effective date based on an earlier claim, he would have to show CUE in a prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Neither the Veteran nor his representative has alleged CUE in the prior rating decision. Rather, the Veteran has suggested that the RO failed in its duty to assist by not providing an additional VA examination in 2010. A failure in the duty to assist does not amount to a valid claim of CUE. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that a breach of the duty to assist cannot form the basis for a CUE claim). Increased Rating 6. A rating in excess of 10 percent for chronic strain of the lumbosacral spine, to include restoration of a previously assigned 20 percent rating Prior to separation from military service, the Veteran claimed entitlement to service connection for a back disability. A July 2007 rating decision granted service connection for chronic strain of the lumbosacral spine and assigned a 20 percent rating, effective June 1, 2007. In January 2014, VA received the Veteran’s claim for an increased rating. After a March 2014 VA fee-basis examination, the March 2014 rating decision decreased the assigned rating for the low back disability to 10 percent, effective January 8, 2014. The Veteran contends that a 60 percent rating is warranted for his lumbosacral strain disability. As an initial matter, the due process protections related to reduction in evaluation of a service-connected disability are not necessary in this case. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Here, although the March 2014 rating decision decreased the rating for the Veteran’s low back disability from 20 percent to 10 percent, his combined evaluation for compensation increased from 50 percent effective June 1, 2007, to 90 percent effective February 15, 2013. Therefore, because his VA compensation payments were not reduced by the assignment of a lower, 10 percent rating for his low back disability, the provisions regarding a proposed reduction are not applicable. Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. For ratings that have been in effect for five years or more, reduction is warranted when reexamination discloses sustained material improvement. VA must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413, 416-17 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Since service connection was established, effective June 1, 2007, the Veteran’s chronic lumbosacral strain has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, which rates disabilities of the spine, including lumbosacral strain under a general rating formula. Initially, the chronic lumbosacral strain was rated 20 percent disabling. Effective January 8, 2014, his chronic lumbosacral strain was rated 10 percent disabling. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply to disability of the thoracolumbar spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 warranted 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 for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note 2. Range of motion measurement is rounded to the nearest five degrees. Id. Note 4. Associated objective neurologic abnormalities are evaluated separately, under an appropriate diagnostic code. Id. Note 1. In July 2007, the Veteran was afforded a VA examination to evaluate his claimed back disability. The examiner noted that the Veteran was well-known to have Ehlers-Danlos syndrome, a condition involving laxity of ligaments. The Veteran described straining his back in service during a buddy-carry exercise and now having generalized stiffness to his back, usually with stiffness and pain in the morning or pain with sitting longer than one hour. He did not describe any radiation, numbness, weakness, bladder or bowel incontinence, or erectile dysfunction. On examination, the examiner observed some generalized stiffness with gait and posture, but otherwise strong and steady appearance. There was tenderness noted in the paravertebral areas and slight spasms were palpable. Rounded to the nearest five degrees, thoracolumbar spine range-of-motion testing revealed forward flexion to 60 degrees with pain beginning at 20 degrees, extension to 20 degrees, left and right lateral flexion each to 25 degrees, and left and right rotation each to 25 degrees. Following five repetitions of forward flexion, there was no change. Other examination findings included no weakness and no neurological or sensory abnormality noted. The impression of a lumbar spine x-ray study was no acute bony or joint change noted on the current examination. Based on the Veteran’s forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a 20 percent rating was assigned, effective June 1, 2007. In September 2007, the Veteran established VA medical care and described having low back pain since military service that had become almost constant. Physical examination revealed tenderness of the lumbosacral spine with mild muscle spasm and positive straight-leg raising bilaterally at about 60 degrees. During a physical therapy consultation in October 2007, the Veteran complained of occasional pain and tightness in his low back when bending forward. Movement testing demonstrated increased back pain on repetition. A November 2007 treatment record shows the Veteran was discharged from physical therapy after he failed to contact the clinic after missing his next scheduled appointment. A December 2010 VA primary care note reflects the Veteran’s report of experiencing chronic low back pain, rated 3 out of 10 in severity, with soreness after activity. On examination, there was no tenderness to palpation of his spine, straight-leg raising was negative, sensation was intact, and he had normal strength in his upper and lower extremities. A January 2013 primary care note indicates the Veteran presented for a general check in with complaints of shoulder dislocations related to his EDS. He mentioned that he gets soreness in his back if he is really active. In July 2013, he described the same symptom of soreness in his back with increased activity; he also described a very tender lump over the right interscapular area. An October 2013 surgery consultation report identified a benign intramuscular lipoma. During the evaluation, the Veteran indicated he was a master’s degree student and worked for the National Geospatial-Intelligence Agency. In January 2014, VA received the Veteran’s claim for an increased rating for his chronic lumbosacral strain. During a March 2014 VA fee-basis examination, the Veteran described back pain and weakness with flare-ups caused by activity, especially bending, which last for a period of hours and cause moderate limitation compared to his function when not having a flare-up. He denied use of any assistive devices. Thoracolumbar spine range-of-motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees with objective evidence of painful motion occurring at the endpoint of each plane of motion. Following repetitive-use testing, there was no change in range of motion. The examiner indicated that less movement than normal; excess fatigability; incoordination; pain on movement; disturbance of locomotion; and interference with sitting, standing, and/or weight-bearing were factors contributing to disability. The examiner opined that pain, fatigability, and incoordination could significantly limit the Veteran’s functional ability during flare-ups, or when the spine is used repeatedly over a period of time; however, he could not opine as to the degree of limitation because no flare-up was noted during the current evaluation. Other examination findings included the following: localized tenderness or pain to palpation at the lower back area; guarding and/or muscle spasm that did not result in abnormal gait or spinal contour; normal muscle strength testing with no muscle atrophy present; normal reflex and sensory function; negative straight leg raising bilaterally; no radicular pain or signs or symptoms of radiculopathy; no other neurologic abnormalities related to the spine; and no intervertebral disc syndrome. The impression of a lumbosacral spine x-ray study was normal alignment without compression fracture of spondylolisthesis; slightly decreased L5-S1 intervertebral space height. The diagnosis was lumbosacral spine chronic strain and degenerative disc disease with underlying Ehlers-Danlos syndrome. The examiner noted the diagnosis of arthritis was a progression of the previous diagnosis of chronic strain of the thoracolumbar spine, explaining that chronic back strain/sprain and joint laxity from the underlying syndrome can predispose degenerative disc disease. Finally, the examiner suggested the Veteran was limited to lifting 25 pounds on a limited basis, walking 1 mile at one time, walking 1 to 3 hours in an 8-hour day, sitting for a half hour at one time and for 6 hours during an 8-hour day, and standing for 1 to 2 hours at one time and for 2 hours during an 8-hour day. During a May 2014 primary care visit, he was observed to ambulate well and appeared in no acute distress. He complained of pain and stiffness in his upper back in the interscapular and mid-trapezius area and neck. He reported he had “lower back tightness as well, but not as bad as upper back.” He continued to work as an intelligence analyst. The assessment included chronic lumbosacral strain. The physician recommended the Veteran continue exercises at home because he was not interested in physical therapy and noted that the Veteran’s back was not bothering him as much as before. In his May 2014 notice of disagreement (NOD), the Veteran expressed his belief that his chronic back strain had greatly worsened since separation from military service. He related that the “simple task of tying my shoes has become extremely painful,” adding that he had constant, daily back pain that worsens with motion. He asserted that his back pain was due to his Ehlers-Danlos syndrome in addition to chronic strain. In his December 2015 substantive appeal, he reiterated his contentions and emphasized that his military service “left me with constant pain and immobility in my back.” VA treatment records from July 2014 reflect the Veteran’s request for a medical report regarding his diagnosis of Ehlers-Danlos syndrome to determine his medical qualification for overseas travel with the National Geospatial-Intelligence Agency. He reported taking occasional Advil or Naproxen for joint aches and pains. He stated he notices dislocation or subluxation with extremes of range of motion, lifting weights, or overhead activities. He was advised to avoid these or any other activities that cause subluxation or dislocation. He did not describe particular problems with his back. Since receipt of the claim for an increased rating, the Veteran’s chronic lumbosacral strain has been manifested at worst by arthritis confirmed by x-ray evidence; extension limited to 20 degrees with pain at the endpoint of each plane of motion; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. These findings are consistent with the 10 percent rating assigned from January 8, 2014. A higher, 20 percent rating is not warranted because neither the March 2014 VA fee-basis examination nor contemporaneous VA treatment records demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine 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. Regarding the March 2014 examination report itself, the Board finds it is full and complete, and at least as full and complete as the July 2007 examination that formed the basis for the original rating chronic back strain. The March 2014 examiner obtained a history from the Veteran; included range-of-motion testing that detailed where pain began; performed a neurological evaluation; considered a contemporaneous x-ray report; and identified functional impairment attributable to the Veteran’s lumbosacral spine disability. In addition, the evidence of record clearly reflects material improvement. Contrary to the Veteran’s report that he developed immobility of his back, the March 2014 examination report demonstrates the range of motion of his spine has improved since 2007. Similarly, the examination findings regarding normal muscle strength and no muscle atrophy support the conclusion that his symptoms have not caused him to avoid using his back, despite evidence that he still experiences pain with motion. In fact, VA treatment records indicate his physical activity includes lifting weights. Finally, it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Here, the evidence shows the Veteran was in a master’s degree program while working part-time and has been working for an intelligence agency at least since 2013. Treatment for his chronic back strain has been limited to over-the-counter medications and some home exercises. In this context, the function of his back is shown to have improved. In reaching the above conclusions, 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 than that assigned, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.