Citation Nr: 21002403 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-31 154 DATE: January 13, 2021 ORDER 1. For the period from August 15, 1968 to March 3, 1999, an initial 10 percent rating for the lumbar spine disability is granted. 2. For the period from March 3, 1999 to April 6, 2016, an initial rating in excess of 10 percent for the lumbar spine disability is denied. 3. For the period from April 6, 2016 forward, an initial rating in excess of 40 percent for the lumbar spine disability is denied. FINDINGS OF FACT 1. For the period from August 15, 1968 to March 3, 1999, the lumbar spine disability has been manifested by slight limitation of motion of the lumbar spine. 2. For the period from March 3, 1999 to April 6, 2016, the lumbar spine disability has been manifested by slight limitation of motion of the lumbar spine and by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm not resulting in abnormal gait or abnormal spinal contour. 3. For the period from April 6, 2016 forward, the lumbar disability has not been manifested by ankylosis of the thoracolumbar spine and/or incapacitating episodes requiring physician ordered bed rest having a total duration of at least six weeks during a 12-month period. CONCLUSIONS OF LAW 1. For the period from August 15, 1968 to March 3, 1999, resolving reasonable doubt in the Veteran’s favor, the criteria for an initial disability rating of 10 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Codes 5285-5292, 5295 (effective through September 25, 2003). 2. For the period from March 3, 1999, to April 6, 2016, the criteria for a higher initial rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Codes 5285-5292, 5295 (effective through September 25, 2003), DC 5293 (effective from September 23, 2002, and reclassified to 5243 effective September 26, 2003), Diagnostic Codes 5235-5243 (effective September 26, 2003, including reclassification of Diagnostic Codes 5285-5295). 3. For the period from April 6, 2016 forward, the criteria for a higher initial rating in excess of 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to August 1968. The Veteran originally requested a Board of Veterans Appeals (Board) hearing on the June 2017 VA Form 9, Appeal to the Board, but later withdrew the request for a hearing in a June 2020 letter. The Board notes that while the Veteran, through counsel, has requested an “earlier effective date” for the compensable evaluation of service connection for degenerative disc disease, this request is essentially an appeal for a higher initial disability rating for the period from August 15, 1968 through March 3, 1999 (since the compensable, 10 percent rating was assigned effective March 3, 1999). Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If an increase in disability occurred within one-year prior to the claim for increase, the increase is effective as of the date the increase was factually ascertainable. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (holding “that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date”). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Rating Lumbar Spine Disabilities During the pendency of this claim, the criteria for rating disabilities of the spine in the VA Schedule for Rating Disabilities was revised effective September 23, 2002, and again effective September 26, 2003. The September 26, 2003 amendment, which assigned a new diagnostic code number to intervertebral disc syndrome (IVDS) (5243) and reworded some of the language, was non-substantive in nature. See Schedule for Rating Disabilities; The Spine, 67 Fed. Reg. 56,509, 56,510 (Sept. 4, 2002) (indicating that the then-proposed amendment “would make editorial changes,” but would not “represent any substantive change to the recently adopted evaluation criteria for intervertebral disc syndrome”). Accordingly, there are essentially two sets of criteria, the earlier criteria and the current criteria, applicable to the evaluation of the Veteran’s spine disability. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise, and thus may not apply the current rating criteria prior to its September 23, 2002 effective date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Super Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran’s spine disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would afford the highest rating. Rating Criteria prior to September 23, 2002 Former Diagnostic Code 5293 provided a 10 percent rating for mild Intervertebral Disc Syndrome (IVDS), a 20 percent rating for moderate symptoms with recurring attacks, and a 40 percent rating for severe symptoms, with recurring attacks and with intermittent relief. A 60 percent rating was warranted when the IVDS was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, former Diagnostic Code 5293 (2002). Effective from September 23, 2002, IVDS is rated under the same criteria as now provided in Diagnostic Code 5243 discussed below. 38 C.F.R. § 4.71a, former Diagnostic Code 5293 (2002). Rating Criteria prior to September 26, 2003 Prior to September 26, 2003, under the version of DC 5292, a 10 percent rating is assigned for slight limitation of motion of the lumbar spine, a 20 percent evaluation is assigned for moderate limitation of motion of the lumbar spine, and a maximum 40 percent evaluation is assigned for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, DC 5292 (2002). Prior to September 26, 2003, sacro-iliac injury and weakness was rated according to DC 5294. Lumbosacral strain was rated according to DC 5295. These disorders warranted a noncompensable rating for slight subjective symptoms only. A 10 percent rating was warranted for characteristic pain on motion. A 20 percent rating was warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating was warranted for severe disorder with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5294, 5295 (2003). Prior to September 26, 2003, ankylosis of the lumbar spine was rated under former Diagnostic Code 5289, which provided 40 and 50 percent ratings for ankylosis that was favorable or unfavorable, respectively. 38 C.F.R. § 4.71a, former Diagnostic Code 5289 (2003). Ankylosis is immobility and consolidation of a joint due to disease, injury, or surgical procedure. Colayong v. West, 12 Vet. App. 524 (1999); citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (28th Ed. 1994). Terms such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Rating Criteria on and after September 26, 2003 Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered DC 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2019). See 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made 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. Under the General Rating Formula, including DC 5242 (which has currently been assigned to the degenerative disc disease of the lumbar spine from August 15, 1968 through March 3, 1999), and DC 5237, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable 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. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. The General Rating Formula also, in pertinent part, provides the following Notes: Note 1: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note 2: (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note 5: 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under DC 5243 (Intervertebral Disc Syndrome), a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. DC 5243 provides the following Notes: Note (1): 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. Note (2): 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 should be evaluated 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 evaluation for that segment. 1. Initial Rating for Degenerative Disc Disease of the Lumbar Spine from August 15, 1968 to March 3, 1999 The Veteran is in receipt of a noncompensable disability rating for the service-connected lumbar spine disability under the General Rating Formula for the entire rating period on appeal from August 15, 1968 to March 3, 1999. See 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. The Veteran generally contends that a higher rating for the lumbar spine disability is warranted for this period on appeal. See June 2017 VA Form 9, Appeal to the Board. As noted above, the Board notes that while the Veteran, through counsel, has requested an earlier effective date for the compensable evaluation of service connection for degenerative disc disease, this request is essentially one for a higher initial rating for the period from August 15, 1968 through March 3, 1999 (since the compensable, 10 percent rating was assigned effective March 3, 1999). The criteria for rating spine disabilities were previously amended, with changes effective on September 23, 2002 and September 26, 2003. Initially, under the old regulations which were in effect during this period on appeal (August 15, 1968 to March 3, 1999), DCs 5287, 5288, 5290, and 5291 pertain to disabilities of the cervical and dorsal spine and are not applicable to the service-connected lumbar spine disability. Further, the evidence does not show demonstrable deformity of a vertebral body (DC 5285), complete bony fixation of the spine (DC 5286), ankylosis of the lumbar spine (DC 5289), IVDS (DC 5293), sacro-iliac injury or weakness (DC 5294), or lumbosacral strain (DC 5295). Accordingly, these diagnostic codes (all which existed prior to September 26, 2003) are not applicable in the instant case. 38 C.F.R. § 4.71a (2002). See November 1968 VA examination. See also service treatment records dated October and December 1967. As the period from August 15, 1968 to March 3, 1999 is discussed in this section of the decision, only the old regulations under DC 5292 are applicable to the lumbar spine disability during this period on appeal. After review of all the evidence, lay and medical, the Board finds that for the initial rating period from August 15, 1968 to March 3, 1999, the criteria for an initial higher 10 percent rating for a lumbar spine disability have been met under DC 5292 for slight limitation of motion of the lumbar spine. October 1967 service treatment records show the Veteran’s report that he failed a flight physical because he was unable to bend and touch the floor and was told that he had sciatica. These service treatment records show that the Veteran was unable to touch the floor due to tight hamstrings and tight lumbosacral fascia, but that there was no neuropathy in the lower extremities. December 1967 service treatment records also show that the Veteran was evaluated in the emergency room after he passed out while standing at attention due to low back pain. The Veteran underwent a VA examination in November 1968. At that time, he reported developing low back problems during service and experiencing recurrent episodes of back pain. The VA examiner wrote that the Veteran had full range of motion of the spine and no tenderness on palpation of the vertebral lumbar muscles, and that there was no sensory deficit or evidence of muscle atrophy. The diagnosis was a history of low back pain with no residuals. An x-ray of the lumbar spine showed that the lumbar spine curves to the left very slightly, and that the bones and joints otherwise appeared normal. The Board finds that a higher disability rating for the lumbar spine disability is not warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca. The Board has considered reports of pain and stiffness and lay descriptions of limited motion when rating the low back disability. Even with these considerations, the evidence of record does not show functional impairment that rises to the level of moderate limitation of motion of the lumbar spine, as the evidence shows full range of motion of the lumbar spine at the November 1968 VA examination. After resolving all reasonable doubt in favor of the Veteran, and based on the limitation of motion reflected in the October 1967 service treatment records, and considering additional limitations of motion and function due to reported pain and stiffness, the Board finds that a 10 percent rating is warranted under DC 5292 for slight limitation of motion of the lumbar spine. The Board finds that a higher 20 percent rating, which requires moderate limitation of motion of the lumbar spine, is not warranted, as the evidence demonstrates a full range of motion at the time of the November 1968 VA examination, with some additional limitations considered due to pain and stiffness, but not more nearly approximating moderate limitation of motion. Further, the record does not show demonstrable deformity of a vertebral body (DC 5285), complete bony fixation of the spine (DC 5286), ankylosis of the lumbar spine (DC 5289), IVDS (DC 5293), sacro-iliac injury or weakness (DC 5294), or lumbosacral strain (DC 5295) during the entire period on appeal. For these reasons, an initial 10 percent rating, but no higher, is warranted based on slight limitation of motion of the lumbar spine for the initial rating period from August 15, 1968 through March 3, 1999. 38 C.F.R. § 4.71a, DC 5292 (in effect prior to September 23, 2003). 2. Rating Degenerative Disc Disease of the Lumbar Spine from March 3, 1999 to September 26, 2003, and from September 26, 2003 to April 6, 2016 The criteria for evaluating spine disabilities were amended twice during the pendency of this appeal, with changes effective September 23, 2002 and September 26, 2003. If a law or regulation changes during the course of an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 & 3-2000. The Veteran is in receipt of a 10 percent disability rating for the service-connected lumbar spine disability under the General Rating Formula for the entire rating period on appeal from March 3, 1999 to April 6, 2016. See 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. The Veteran generally contends that the lumbar spine disability warrants an initial rating higher than 10 percent for the entire period on appeal. See June 2017 VA Form 9, Appeal to the Board. As a change was made to the regulations relevant to this case on September 26, 2003, the Board will separately address the rating period from March 3, 1999 to September 26, 2003 and the period from September 26, 2003 to April 6, 2016. Rating the Lumbar Spine Disability from March 3, 1999 to September 26, 2003 After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from March 3, 1999 to September 26, 2003, the criteria for an initial rating in excess of 10 percent for the lumbar spine disability have not been met or more nearly approximated 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5292 to 5295 (2002). Throughout this period, the lumbar spine disability was manifested by limitation of range of motion to an unknown degree, as reported in a March 1993 letter by the Veteran’s physician. A March 1993 letter from a private physician states that the range of motion of the lumbar spine was limited in all directions, and that the Veteran had more pain on extension than flexion; however, this letter did not specify the range of motion of the lumbar spine. Turning to the regulations in effect at the time the Veteran’s claim was received, for the initial rating period from March 3, 1999 to September 26, 2003, the Board finds that the overall lumbar spine disability resulted in no more than slight limitation of motion of the lumbar spine. Viewing the Veteran’s range of motion as a whole, the Board finds that the overall lumbar spine disability results in no more than slight limitation of motion. 38 C.F.R. § 4.71a (2002). This disability picture does not more nearly approximate moderate limitation of motion of the lumbar spine so as to warrant the higher (20 percent) rating under DC 5292. The Board also finds that, for the initial rating period from March 3, 1999 to September 26, 2003, a disability rating in excess of 10 percent is not warranted under DC 5293, as the evidence does not show that a diagnosis of IVDS during the period on appeal. A rating in excess of 10 percent is also not warranted under DC 5294 or 5295, as the Board finds that for the rating period from March 3, 1999 to September 26, 2003, the weight of the evidence of record, including medical and lay statements, shows that the Veteran’s lumbar spine disability was not manifested by a sacro-iliac injury or lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion during this period. See March 1999 private physician letter. The Board has considered and weighed the Veteran’s assertions of functional impairment resulting from the lumbar spine disability; however, such functional impairment has been considered in arriving at the 10 percent rating for limitation of motion of the lumbar spine based on range of motion measurements, to include as due lay and medical evidence of pain, resulting in the functional impairment described above. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 206-07. For these reasons, the preponderance of the evidence weighs against a rating in excess of 10 percent rating for the rating period from March 3, 1999 to September 26, 2003. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 206-07. Rating the Lumbar Spine Disability from September 26, 2003 to April 6, 2016 After a review of all the evidence of record, both lay and medical, the Board finds that, for the initial rating period from September 26, 2003 to April 6, 2016, the criteria for an initial rating in excess of 10 percent for the lumbar spine disability have not been met or more nearly approximated under any of the diagnostic codes pertaining to the lumbar spine disability under the “old” or “new” regulations (from the date issued, forward). 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5292 to 5295 (2002), DCs 5242 and 5253 (2018). Neither the old nor new regulations are more favorable to the Veteran during this period on appeal, as the weight of the evidence is against finding that a rating in excess of 10 percent is warranted. The weight of the evidence does not show limitation of range of motion of the lumbar spine (as contemplated under the new rating criteria) was manifested by forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 (required for an increased 20 percent rating), and does not contain evidence showing that the Veteran experienced moderate limitation of range of motion of the lumbar spine (as contemplated under the old rating criteria) (required for an increased 20 percent rating). Turning to the regulations in effect prior to September 26, 2003, the March 2008 and June 2015 VA examination reports show histories, findings, and assessments that the lumbar spine disability did not meet or more closely approximate the criteria for a higher 20 percent rating under DC 5292, which requires moderate limitation of motion of the lumbar spine. For example, a March 2008 VA examination showed that the Veteran had limitation of forward flexion for 80 degrees with pain at 70 degrees, with extension to 30 degrees with pain at 20 degrees, with no functional loss of motion on repetition, and the worst combined range of motion of the lumbar spine was 210 degrees, including due to pain. A June 2015 VA examination shows that the Veteran had a normal range of motion in the lumbar spine. Turning to the regulations in effect after September 26, 2003, the Board finds that, for the initial rating period from September 26, 2003 (effective date of “new” rating criteria) to April 6, 2016, the lumbar spine disability has not met or more closely approximated the criteria for a higher initial 20 percent disability rating. 38 C.F.R. §§ 4.3, 4.7, 4.71a (2018). A March 2008 VA examination showed that the Veteran had limitation of forward flexion for 80 degrees with pain at 70 degrees, with extension to 30 degrees with pain at 20 degrees, with no functional loss of motion on repetition, and the worst combined range of motion of the lumbar spine was 210 degrees, including due to pain. A June 2015 VA examination shows that a normal range of motion in the lumbar spine, with forward flexion to 90 degrees and extension to 30 degrees, with pain noted on examination which caused functional loss, and no additional loss of function or range of motion after three repetitions. The VA examiner provided conflicting information about the presence of guarding and muscle spasms of the thoracolumbar spine but did not note that they resulted in abnormal gait or abnormal spinal. The VA examiner wrote that the Veteran experienced localized tenderness of the lumbar spine that did not result in an abnormal gait or abnormal spinal contour. The VA examiner also wrote that there was no ankylosis or IVDS of the lumbar spine, and that pain limited the Veteran’s mobility. Based on the above, the Board finds that the lumbar disability more closely approximated the criteria for a 10 percent rating under both the old and revised regulations for the initial rating period from September 26, 2003 to April 6, 2016. 38 C.F.R. § 4.71a (2018). The weight of the evidence demonstrates that, during the rating period from September 26, 2003 to April 6, 2016, the lumbar spine disability did not more nearly approximate 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 is 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, so as to warrant the next higher rating of 20 percent under the revised regulations. 38 C.F.R. § 4.71a (2018), General Rating Formula. The Board also finds that the evidence of record does not show moderate limitation of range of motion so as to warrant an increased 20 percent initial rating under the old regulations. 38 C.F.R. §§ 4.71a (2002). The evidence of record shows that the functional range of motion was not additionally limited due to pain, fatigue, or incoordination sufficient to serve as a basis for an initial higher (20 percent) rating at any point during the initial rating period from March 3, 1999 to April 6, 2016. See Mitchell, 25 Vet. App. 32 (“pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.”). The Board has considered and weighed the Veteran’s assertions of functional impairment resulting from the lumbar spine disability; however, such functional impairment has been considered in arriving at the 10 percent rating for limitation of motion of the lumbar spine based on range of motion measurements, to include as due reports of painful motion, resulting in the functional impairment described above. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, at 206-07. For these reasons, the preponderance of the evidence weighs against a finding that the lumbar spine disability more closely approximated an increased initial 20 percent rating throughout the rating period from September 26, 2003 to April 6, 2016. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 206-07. 3. Rating Degenerative Disc Disease of the Lumbar Spine from April 6, 2016 Forward The Veteran is in receipt of a 40 percent disability rating for the service-connected lumbar spine disability under the General Rating Formula for the entire rating period on appeal from April 6, 2016. See 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. The Veteran generally contends that a higher rating is warranted for the lumbar spine disability. See June 2017 VA Form 9. After a review of all the evidence of record, the Board finds that the lay and medical evidence demonstrates that, for the entire rating period from April 6, 2016 forward, the lumbar spine disability has more nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less (required for the currently assigned 40 percent rating); and has not more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine (required for a higher 50 percent rating). The Board finds that the new regulations are more favorable to the Veteran for this period on appeal, as an increased 50 rating would be warranted if the Veteran had ankylosis of the thoracolumbar spine (which the evidence does not show), whereas a maximum rating of 40 percent would be warranted for severe limitation of motion of the lumbar spine under DC 5292 (available under the old regulations). An April 2016 private examiner wrote that the Veteran had IVDS of the thoracolumbar spine with incapacitating episodes for a total duration of less than one week over the past 12 months. The April 2016 private examination does not show ankylosis of the thoracolumbar spine. A May 2016 VA examiner wrote that forward flexion of the lumbar spine was limited to 15 degrees, and that the Veteran did not have ankylosis or IVDS of the lumbar spine. A November 2017 VA examiner wrote that forward flexion of the lumbar spine was limited to 75 degrees, that the Veteran had difficulty bending, twisting, or squatting, and that pain was noted on examination which caused functional loss. The VA examiner also wrote that there was no ankylosis of the lumbar spine and no IVDS of the lumbar spine. The Board has considered the Veteran’s assertion on the July 2016 Notice of Disagreement that the Veteran “has not been provided a full and fair compensation and pension examination and report,” and that “the use of plain x-ray films to evaluate his injuries does not equate with the standard of care for a soft tissue spinal injury.” However, the Board finds that the May 2016 VA examination was adequate for rating purposes, as the VA examiner performed an in-person examination, reviewed the Veteran’s medical history, and provided sufficient information for VA to apply the relevant rating criteria. Further, the Veteran was provided with a new VA examination of the lumbar spine in November 2017. The Board has also considered the articles submitted by the Veteran in October 2018 entitled “Limping and Back Pain,” “The Effects of Torsion on the Lumbar Intervertebral Joints: The Role of Torsion in the Production of Disc Degeneration,” “Clinical Observation,” “Understanding Normal & Pathological Gait,” “The Effects of Torsion on the Lumbar Intervertebral Joints: The Role of Torsion in the Production of Disc Degeneration,” “Mechanical Low Back Pain,” and “Mechanical Low Back Pain Clinical Presentation.” However, the Board finds that these articles do not establish entitlement to a higher initial rating during any of the periods on appeal, as they describe lumbar spine disabilities generally but do not describe the specific symptomatology or functional limitations experienced by the Veteran personally during any period on appeal. Even with full consideration to limitations of motion and function due to any of the diagnoses and orthopedic limiting factors (see 38 C.F.R. §§ 4.40, 4.45, and 4.59), the evidence does not show ankylosis of the entire thoracolumbar spine required for a higher 50 percent disability rating. For example, the Board has considered the statement by the April 2016 private examiner that bending, lifting, pushing or pulling for any extended period of time is difficult to impossible, and that standing and walking for any length of time or distance is impossible. This is not a description of ankylosis, and is not a medical finding of ankylosis. A report by the November 2017 VA examiner that the Veteran has difficulty bending, twisting, or squatting is also not a description of ankylosis, and is not a medical finding of ankylosis, and does not describe IVDS resulting in incapacitating episodes of at least six weeks during any 12-month period. (Continued on the next page)   The Board finds that a rating in excess of 40 percent for the lumbar spine disability is not warranted for the rating period from April 6, 2016 forward. The evidence of record demonstrates that the lumbar spine disability has not manifested in unfavorable ankylosis of the entire thoracolumbar spine (criteria required for a 50 percent rating) or IVDS resulting in incapacitating episodes of at least six weeks during any 12 month period (criteria required for a 60 percent rating). The April 2016 private examination report does not show ankylosis in the thoracolumbar spine. Further, VA treatment records throughout the entire period on appeal also do not reflect either ankylosis or incapacitating episodes of at least six weeks during any 12-month period. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an increased initial rating in excess of 40 percent for the lumbar spine disability for the rating period on appeal from April 6, 2016 forward. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.