Citation Nr: 20026071 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-04 080A DATE: April 15, 2020 ORDER Entitlement to a rating in excess of 20 percent for a right knee disability is denied. Entitlement to rating in excess of 20 percent prior to September 18, 2018, for a lumbar spine disability is denied. Entitlement to a rating in excess of 40 percent as of September 18, 2018, for a lumbar spine disability is denied. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran’s right knee disability has been manifested by flexion limited, at worst, to 130 degrees and extension to 0 degrees; it has not been manifested by flexion limited to 30 degrees or less, extension limited to 10 degrees or less, ankylosis, objective evidence of recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. Prior to September 18, 2018, the Veteran’s lumbar spine disability was manifest by pain and limitation of motion with forward flexion of less than 60 but more than 30 degrees; the evidence does not show favorable ankylosis of the entire thoracolumbar spine. 3. As of September 18, 2018, the Veteran’s lumbar spine disability was manifested by pain and limitation of motion of forward flexion of the spine; unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during a 12-month period requiring bed rest prescribed by a physician were not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5256-63. 2. The criteria for a rating in excess of 20 percent prior to September 18, 2018, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for a rating in excess of 40 percent as of September 18, 2018, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to February 1988. This claim was remanded in January 2019 for further development in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 20 percent for a right knee disability The Veteran asserts that a right knee disability is worse than the 20 percent rating assigned. The Veteran’s right knee disability, characterized by limitation of extension, has been rated under Diagnostic Code 5010-5261. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. The hyphenated diagnostic code in this case indicates that degenerative arthritis, under Diagnostic Code 5010, is the service-connected disability, and the residual condition to which the arthritis is rated by analogy is limitation of extension of the right knee, which is rated under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Degenerative joint disease of the knee is rated under Diagnostic Code 5010. Diagnostic Code 5010 directs that traumatic arthritis substantiated by X-ray findings should be rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 20 percent rating is assigned for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is assigned for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Rating under Diagnostic Code 5003 cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a knee is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a knee is rated 0 percent when limited to five degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown, 6 Vet. App. 354 (1993). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Separate ratings may be awarded for compensable limitation of flexion and limitation of extension of the same knee joint, for recurrent subluxation and lateral instability of the same knee joint, and for meniscal pathology of the same knee joint. The assignment of separate ratings requires separately compensable symptomatology. A June 2014 VA examination of the right knee diagnosed degenerative changes of the right knee. The Veteran reported right knee pain which had gotten worse and made it hard to walk, stand, and sit. The Veteran reported flare ups which caused him to fall without warning. Objectively, right knee flexion was measured to 120 degrees with pain on movement, and extension to 0 degrees with no pain on movement. There was no additional limitation in range of motion following repetitive testing. Pain significantly limited functional ability following repeated use. There was no pain on palpation, no muscle atrophy, and no ankylosis of the right knee. Anterior instability, posterior instability, medial instability, and lateral instability testing all yielded normal results. There was no evidence of joint instability or patellar subluxation or dislocation. The Veteran did not use assistive devices. VA medical records show that a May 2013 right knee x-ray diagnosed degenerative arthritis. The Veteran complained of pain and painful range of motion of the right knee in August 2015. In September 2015, the Veteran was prescribed a hinged knee brace. In June 2016, the Veteran reported a fall in the last twelve months due to the knee giving out. At a VA examination in April 2016, the Veteran reported using a cane to “ameliorate right knee pain during ambulation.” On VA examination in December 2019, the Veteran reported experiencing sharp pain and swelling in the right knee. No flare-ups were reported, although the Veteran stated that he had to be careful going up and down stairs because it felt like the knee was going to give out. Right knee was flexion was measured to 130 degrees and extension to 0 degrees. Pain with flexion was noted but the examiner noted that pain did not result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation and no pain with weight bearing. There was no additional limitation in range of motion or functional ability following repetitive testing. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There was no evidence of crepitus, no muscle atrophy, and no ankylosis was present. Anterior instability, posterior instability, medial instability, and lateral instability testing all yielded normal results. There was no evidence of joint instability, patellar subluxation or dislocation, recurrent effusion, or meniscal conditions. The examiner noted that residual signs of symptoms due to arthroscopic knee surgery were pain and swelling. The examiner opined that the functional impact of degenerative changes of the right knee made it difficult to walk, squat, and stand. The Board finds that the weight of the evidence is against assigning a higher rating throughout the period of appeal under Diagnostic Code 5261 for limitation of extension for the right knee. The evidence shows that extension of the right knee was to 0 degrees throughout the period of appeal. Those extension measurements are consistent with no more than a 0 percent rating under Diagnostic Code 5261. The Board finds that the preponderance of the evidence is against the assignment of any higher disability rating under Diagnostic Code 5260 for limitation of flexion of the right knee at any time during the course of the appeal. The evidence shows that flexion of the knee was limited, at worst, to 130 degrees, with consideration of pain. The flexion measurements are consistent with no more than a 0 percent rating under Diagnostic Code 5260. Because of the Veteran’s painful limitation of knee motion, and other symptoms, the presently assigned disability rating of 20 percent based on painful motion for the right knee has been assigned. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. However, the Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate rating for limitation of motion of the right knee. The rating assigned has considered additional functional loss due to pain and other factors. The Veteran reported that the right knee gives out. However, none of the medical professionals found objective evidence of right knee instability or weakness. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the clinical findings and objective test results reported on the June 2014 and December 2019 examinations more probative as the Veteran is not shown to have the requisite education, experience, and training to determine the severity level of service-connected right knee disability as it applies to the rating schedule. Therefore, the Board finds that a separate rating under Diagnostic Code 5257 is not warranted. None of the treatment records, to include X-ray findings, show dislocated or removed semilunar cartilage of the right knee. Thus, Diagnostic Codes 5258 and 5259 cannot serve as a basis for an increased or separate rating for the right knee. Finally, in considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable, as the medical evidence does not show that the Veteran has any of those conditions. The Board notes that the functional loss was considered as the medical evidence shows that the Veteran has consistently complained of pain. 38 C.F.R. §§ 4.40, 4.45. However, the limitation of motion and functional loss documented on the VA examinations as resulting from pain, including flare-ups and repetitive use, is contemplated in the disability rating currently assigned. Moreover, pain did not result in limitation of flexion or extension to the level that any separate or higher rating would be warranted. There is otherwise no evidence of additional significant impairment of motor skills, muscle function, or strength attributable to the right knee disability, beyond what is already being compensated. Therefore, the Board finds that a higher rating based on functional loss is not warranted for the right knee. The Board has considered whether further staged ratings are appropriate for the service-connected right knee disability. However, the Board finds that right knee symptomatology has been stable throughout the appeal period. Therefore, assigning further staged ratings for such disability is not warranted. The Board has also considered whether the right knee disability presents an exceptional or unusual disability picture as to make impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. Thun v. Peake, 22 Vet. App. 111 (2008). The Board notes that the schedular criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability. 38 U.S.C. § 1155. Here, the rating criteria reasonably describe the right knee disability level and symptomatology. Thus, the disability picture is contemplated by the rating schedule, and the assigned schedular ratings are found to be adequate. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). While the Veteran has complained that he has difficulty walking, standing, sitting, and squatting due to pain, those complaints are contemplated by the rating criteria and provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, as those situations arise because of the above factors. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular ratings are found to be adequate. Therefore, the Board concludes that referral for extraschedular consideration is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate rating for a right knee disability and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to rating in excess of 20 percent prior to September 18, 2018, for a lumbar spine disability Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, 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 rating 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome 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 rating is warranted 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 rating is warranted 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 rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran asserts that prior to September 18, 2018, a lumbar spine disability was more severe than contemplated in the assignment of a 20 percent rating. VA outpatient records throughout the period on appeal generally show ongoing treatment for back pain. On VA examination in June 2014, the Veteran reported back pain, difficulty standing, and difficulty walking. The Veteran reported flare-ups which resulted in “knees give out, hurt back.” The examiner measured forward flexion of the thoracolumbar spine to 90 degrees with painful motion beginning at 90 degrees; extension to 30 degrees with painful motion beginning at 30 degrees; right and left lateral flexion each to 30 degrees with pain beginning at 30 degrees; right and left lateral rotation each to 30 degrees with painful motion beginning at 30 degrees. Pain resulted in functional loss. Repetitive use testing did not result in additional loss of range of motion. However, pain on movement resulted in functional loss after repetitive use. There was no pain on palpation and no guarding or muscle spasms present. Muscle strength testing was noted as normal with no muscle atrophy. Deep tendon reflex testing and sensory examination yielded normal results. There was no ankylosis of the spine. There was no radiculopathy or other neurologic abnormalities. The Veteran did not have intervertebral disc syndrome (IVDS) with incapacitating episodes, and he did not use assistive devices. On VA examination in April 2016, the Veteran reported flare-ups which resulted in back pain with heavy lifting or standing or walking for too long. The examiner measured forward flexion of the thoracolumbar spine to 50 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Pain with each range of motion was noted on examination but it did not result in functional loss. There was no pain on palpation or with weight bearing. Repetitive use testing did not result in additional loss of range of motion or functional loss. There was guarding which did not result in abnormal gait or abnormal spinal contour. The examiner noted that the additional factors contributing to the lumbar spine disability were less movement than normal and pain and guarding on range of motion testing. Muscle strength testing was noted as normal with no muscle atrophy. Deep tendon reflex testing and sensory examination yielded normal results. There was no ankylosis of the spine. There was no radiculopathy or other neurologic abnormalities. The Veteran did not have IVDS with incapacitating episodes but reported using a cane to “ameliorate right knee pain during ambulation.” On VA examination in March 2018, the Veteran reported shooting pain in the lower back down the right leg and buttocks. The Veteran did not report flare-ups. The examiner measured forward flexion of the thoracolumbar spine to 70 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 20; right lateral rotation to 15 degrees; and left lateral rotation to 25 degrees. The abnormal range of motion contributed to functional loss in that the Veteran was “unable to bend down at [the] waist or carry heavy objects.” Pain was noted on examination and resulted in functional loss. There was no pain on palpation or with weight bearing. Repetitive use testing did not result in additional loss of range of motion. However, pain resulted in functional loss after repetitive use. There was no guarding or muscle spasms present. Muscle strength testing was noted as normal with no muscle atrophy. Deep tendon reflex testing and sensory examination yielded normal results. There was no ankylosis of the spine. There was severe intermittent radiculopathy of the right lower extremity with no other neurologic abnormalities. The Veteran had IVDS with no incapacitating episodes. The Veteran reported that he did not use assistive devices. The examiner stated that the functional impact on the Veteran’s ability to work was that he “would not be able to lift heavy objects as a construction worker due to lumbar intervertebral disc syndrome.” Based on the foregoing, the Board finds that a rating in excess of 20 percent prior to September 18, 2018, under the General Rating Formula is not warranted. At no time pertinent to this appeal period did the disability result in forward flexion less than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion or flare-ups. At worst, forward flexion was limited to 50 degrees in April 2016, and that limitation does not reach the level necessary for a higher rating, even in contemplation of the Veteran’s reports of pain and functional loss. The Board notes that the limited range of motion, guarding, and functional loss, reported by the Veteran are contemplated by the 20 percent rating criteria. Absent forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, the Veteran is not entitled to a higher rating under the General Rating Formula. Therefore, a rating in excess of 20 percent prior to September 18, 2018 for a lumbar spine disability is not warranted. The evidence shows that the Veteran has IVDS but at no point pertinent to the appeal period did the Veteran have incapacitating episodes. Therefore, a higher rating is not warranted under the IVDS Rating Formula. In this regard, all VA examinations and treatment records are negative for such a finding, and the Veteran himself has not reported experiencing such incapacitating episode of IVDS as defined by regulation. The Board has considered whether a lumbar spine disability results in associated objective neurological abnormalities such that separate ratings are warranted. In this regard, the Board notes that separate ratings were awarded for bilateral lower extremity radiculopathy, bladder dysfunction, and erectile dysfunction an unappealed September 2011 rating decision. The Board has considered whether staged ratings are appropriate for the service-connected lumbar spine disability. However, the Board finds that at no time prior to September 18, 2018, did the lumbar spine disability symptoms warrant a rating in excess of 20 percent. Therefore, a staged rating is not warranted during this appeal period. The Board finds that a lumbar spine disability did not present an exceptional or unusual disability picture; and that the rating criteria reasonably describe the lumbar spine disability level and symptomatology. Therefore, a referral for extraschedular consideration is not warranted. The Board acknowledges the Veteran’s belief that symptoms associated with a service-connected lumbar spine disability are more severe than as reflected by the 20 percent disability rating. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than the Veteran’s reports regarding the severity of his disability. Accordingly, the Board finds that a rating in excess of 20 percent prior to September 18, 2018, for a lumbar spine disability is not warranted. As the preponderance of the evidence is against the assignment of a higher rating, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a rating in excess of 40 percent as of September 18, 2018, for a lumbar spine disability A November 2019 rating decision increased a lumbar spine disability rating from 20 percent to 40 percent effective September 18, 2018, the date of the Veteran’s intent to file. However, inasmuch as a higher rating is available for the lumbar spine disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. AB v. Brown, 6 Vet. App. 35 (1993). During an August 2019 VA examination the Veteran reported back pain, stiffness, limited range of motion, and difficulty with lifting repetitively over 25 pounds. The Veteran stated that he had become a maintenance supervisor because he was unable to “bend down.” The Veteran reported flare-ups of the lumbar spine which were moderate in severity and occurred two to three times a week. He reported that “the back flare-ups last[ed] up to a day…[were] precipitated by prolong movement… [and were] alleviated by gabapentin.” Objectively, forward flexion of the thoracolumbar spine was measured to 40 degrees, extension to 25 degrees, right lateral and left lateral flexion to 25 degrees, right and left lateral rotation to 25 degrees. The August 2019 examiner noted that the Veteran experienced pain with each range of motion and that the pain caused functional loss. There was evidence of pain with weight bearing. There was no pain with palpation of the joint or associated soft tissue. There was additional limited range of motion after the repetitive use test. Forward flexion was measured to 35 degrees, extension to 20 degrees, right lateral and left lateral flexion to 20 degrees, right and left lateral rotation to 20 degrees after three repetitions. Pain and lack of endurance significantly limited functional ability with repeated use over a period of time. Pain and lack of endurance significantly limited functional ability with flare ups. Range of motion during flare-ups could not be objectively measured as the examination was not conducted during a flare-up. However, the examiner described the limited range of motion during flare-ups as forward flexion to 25 degrees, extension to 20 degrees, right lateral and left lateral flexion to 20 degrees, right and left lateral rotation to 20 degrees. No guarding or muscle spasms were reported. There were no additional factors contributing to the disability, no muscle atrophy, no ankylosis of the spine. The Veteran had IVDS with no incapacitating episodes. During a December 2019 VA examination, the Veteran reported sharp back pain and “sharp pain shooting down the right leg.” The Veteran denied having flare-ups and stated the back pain was constant. The examiner measured forward flexion of the thoracolumbar spine to 55 degrees, extension to 25 degrees, right lateral and left lateral flexion to 20 degrees, right and left lateral rotation to 20 degrees. The examiner noted that the Veteran experienced pain with forward flexion, extension, right lateral flexion, and right lateral rotation. There was no evidence of pain with weight bearing or on palpation. There was no additional limited range of motion after the repetitive use test. The examiner noted that pain significantly limited functional ability with repeated use over a period of time by limiting range of motion on forward flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. There were no flare-ups, guarding, or muscle spasms reported. There were no additional factors contributing to the disability. The examiner noted that the Veteran did not have ankylosis of the spine. The Veteran had IVDS which did not require bed rest prescribed by a physician and treatment by a physician in the past twelve months. Based on the evidence of record the Board finds that the lumbar spine disability does not warrant a rating in excess of 40 percent. Specifically, the objective range of motion testing performed did not show any occasion where the Veteran’s lumbar spine was limited to less than 35 degrees, even when considering the impact of pain and other factors limiting the range of motion. In order for the Veteran’s symptomatology to warrant a higher rating than 40 percent, unfavorable ankylosis would have to be shown affecting the entire thoracolumbar spine. Here, objective medical examination by the VA examiners shows no ankylosis of the entire lumbosacral spine. While the medical evidence shows pain and limited range of motion due to pain, the pain and other limiting factors are not shown to limit the Veteran’s thoracolumbar forward flexion to 30 degrees or less as required for a higher rating. The Board notes the August 2019 VA examiner’s described limited range of motion during flare-ups. However, the Board finds that since the August 2019 examination was not performed during a flare-up the examiner’s estimated range of motion finding is speculative. Finally, the Board notes that the Veteran did not have incapacitating episodes of at least six weeks during any 12-month period which is required for a rating in excess of 40 percent as reported in the VA examination reports. Therefore, the Board finds that the Veteran’s claim for a rating higher than 40 percent for his lumbar spine disability must be denied. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of a spinal disability and the determination of the range of motion of the spine and the prescription for bed rest require medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran’s lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran’s statements in support of his claim. The Board finds that as of September 18, 2018, a lumbar spine disability did not present with symptoms warranting a rating in excess of 40 percent. Therefore, a staged rating is not warranted. The Board finds that a lumbar spine disability did not present an exceptional or unusual disability picture; and that the rating criteria reasonably describe the lumbar spine disability level and symptomatology. Therefore, a referral for extraschedular consideration is not warranted. Accordingly, the Board finds that a rating higher than 40 percent for a lumbar spine disability is not warranted. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.