Citation Nr: 21002457 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-19 072A DATE: January 13, 2021 ORDER A rating higher than 40 percent for lumbar paravertebral myositis is denied. FINDING OF FACT The Veteran’s lumbar spine disability has not been manifested by unfavorable ankylosis. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for lumbar paravertebral myositis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Codes 5021-5242.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to July 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in June 2018 and May 2020. During the pendency of the appeal, a November 2020 rating decision granted a 40 percent rating for the Veteran’s lumbar spine disability effective January 28, 2013, the date of claim for an increased rating. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluation of Lumbar Spine Disability The Veteran’s lumbar paravertebral myositis has been assigned a 40-percent rating under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243; see also DC 5021 (providing that myositis is to be rated on limitation of motion of the affected part, as degenerative arthritis). Under the General Rating Formula, a 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Here, the VA examination reports dated in June 2013, February 2017, and October 2020 reflect the examiners’ findings that the Veteran’ s lumbar spine disability is not manifested by ankylosis, favorable or unfavorable. The Veteran’s treatment records do not show that the Veteran has had ankylosis of the spine. Accordingly, as the Veteran’s lumbar spine disability has not been manifested by unfavorable ankylosis, the criteria for a rating higher than 40 percent under the General Rating Formula have not been met. The Board finds that a separate or higher rating is not warranted under another diagnostic code. In this regard, the VA examination reports show that the Veteran does not have intervertebral disc syndrome (IVDS) of the spine. Thus, the Formula for Rating IVDS Based on Incapacitating Episodes does not apply. See 38 C.F.R. § 4.71a, DC 5243. The VA examination reports also show that based on examination of the Veteran and consideration of his reported symptoms, the examiners found that he does not have an objective neurologic abnormality associated with his lumbar spine disability, including radiculopathy, or bowel or bladder impairment. See id., General Rating Formula, Note (1). The treatment records do not otherwise show an associated neurologic abnormality. Accordingly, the diagnostic codes pertaining to neurological conditions do not apply. See id. Because the preponderance of the evidence is against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel 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.