Citation Nr: 21002865 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-46 852 DATE: January 19, 2021 ORDER Entitlement to an evaluation in excess of 50 percent for lumbar spine degenerative disc disease, status post discectomy is denied. FINDING OF FACT The Veteran's lumbar spine degenerative disc disease, status post discectomy was not productive of functional impairment comparable to unfavorable ankylosis of the entire spine, or had intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of 6 weeks or more during the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for lumbar spine degenerative disc disease, status post discectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1995 to August 1998. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The October 2009 rating decision reduced the Veteran’s service-connected back disability from 50 percent to 40 percent. In a February 2013 decision, the Board restored the disability rating to 50 percent, effective January 1, 2010 and remanded the current issue of entitlement to an evaluation in excess of 50 percent for lumbar spine degenerative disc disease, status post discectomy to schedule a VA examination. The Board previously considered this appeal in May 2016 and remanded this issue to schedule a videoconference hearing as the Veteran and his brother had testified at a hearing before a Veteran Law Judge that is no longer with the Board and the Veteran requested that he be scheduled for a hearing before a current member of the Board. In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In September 2016, the Board, again, considered this appeal and remanded the issue for further development including scheduling a VA examination. The case is returned to the Board for further appellate review. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath, 1 Vet. App. at 593. 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. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. 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. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. § 4.1, 4.2; Schafrath,1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. It is essential that the examination upon which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See id. The factors involved in evaluating and rating disabilities of the joints include the following: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; or pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. An evaluation based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. Consequently, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Where the Veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry was not to be limited to muscles or nerves, and, if feasible, these determinations were to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). However, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate and consider all lay and medical evidence of record, to analyze the credibility and probative value of the evidence, and to provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail; the preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Entitlement to an evaluation in excess of 50 percent for lumbar spine degenerative disc disease, status post discectomy The Veteran contends that his service-connected lumbar spine degenerative disc disease, status post discectomy has worsened. Specifically, he states that his back disability is associated with neurologic symptoms including radiculopathy and urinary incontinence. The Veteran is service connected for lumbar spine degenerative disc disease, status post discectomy at 50 percent under 38 C.F.R. § 4.71, Diagnostic Code 5242. The Board finds that a rating in excess of 50 percent is not warranted for the Veteran's service-connected for lumbar spine degenerative disc disease, status post discectomy. Under Diagnostic Code 5242 degenerative arthritis of the spine is rated under the General Rating Formula for Diseases and Injuries of the Spine. 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 Formula, a 10 percent disability 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 (ROM) 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 height. 38 C.F.R. § 4.71a, General Formula. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined ROM 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Objective neurologic abnormalities, if any, must be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). Normal ranges of motion for the lumbar spine are 90 degrees flexion, and 30 degrees extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a, Plate V. Note (5) defines unfavorable ankylosis as 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 (zero degrees) always represents favorable ankylosis. Id. As mentioned above, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. When the claim is original or supplemental, or a claim for increase, and the claimant fails to report for an examination scheduled without good cause in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. Pertinent to these claims, 38 C.F.R. § 3.655(b) applies to original service connection and non-initial increase rating claims. As to an original service connection claim, when a claimant fails to report for a VA examination without good cause, the claim shall be rated based on the evidence of record; and for a non-initial increased rating claim failure to show to the examination without good cause will result in a denial. See 38 C.F.R. § 3.655(b). During the appeal period, the Veteran has been afforded five VA examinations for back conditions in April 2009, May 2010, April 2013, November 2016 and July 2019. At the April 2009 examination, the Veteran reported that pain has increased over the years, pain is normally localized to the left lower lumbar area and is a sharp 7/10 pain with flare ups to 10/10 which causes him to be unable to move very well, fairly constant pain down the posterior, left lower extremity down to his toes associated with some numbness. The examiner noted that the Veteran is no longer able to run and has reduced bending and lifting capacity which affects his ability to do certain aspects of his job. The examiner noted that the veteran uses a back brace which he wears intermittently for flare ups but does not have any cane or other support devices. On physical examination, the examiner noted mild tenderness over the left lower lumbar area, but no trigger points or spasms are noted. The Veteran is able to flex forward to 30 degrees with 15 degrees extension on 15 degree right and left lateral bending; right and left rotation is 25 degrees with pain throughout the motions increasing at the end, limiting his excursion. There is no further impairment noted on repeated testing, there is normal strength coordination and endurance with no fatigue ability noted. Neurologic exam is intact with normal strength in the lower extremities. There is no atrophy. The examiner noted that there is sciatic pain, but no radiculopathy noted as strength and sensation are intact and he has no signs of nerve root irritation on examination. At the May 2010 examination, the VA examiner noted the Veteran reports of constant pain in the low back with flare ups in severity with any movement or increased physical activity. Flare ups with increased pain may last 1 to 1.5 weeks. The Veteran reported radicular symptoms in the lower extremity to the toes. The examiner noted no episodes of major incapacity during the last 12 months and no complaints of abnormal bowel function. On examination, the Veteran was found to have painful limitation of all movements of the low back with flexion of 20 degrees, extension of 10 degrees lateral flexion of 10 degrees, bilaterally, and lateral rotation of less than 10 degrees, bilaterally. The examiner added that attempts at repetitive movement are quite painful without demonstrating additional impairment as might be associated with pain, weakness, fatigability or lack of endurance. Neurologic examination reveals absent deep tendon patellar and Achilles reflexes (level 0-0) muscle strength is normal, there is normal sensation to light touch in the right lower extremity but diminished sensation to light touch on the lateral aspect of the left leg foot and toes. Repetitive movement of the Veteran’s low back are not at all tolerated and do not appear to be associated with additional functional impairment on a basis of his pain, weakness, fatigability and lack of endurance. The examiner added that there is functional impairment with any activities involving bending, lifting, and twisting, largely based on pain in association with the structural changes related to the surgical procedures. There is no instability or incoordination. At the April 2013 VA examination, the Veteran reported lower back pain, left lower extremity. He rates his pain as 80 percent back or spinal and 20 percent in the gluteal/hamstring/outer left thigh, gets occasional symptoms below the knee, has no pain below the left knee at the time of exam, but at times endorses some burning sensation there. He does not go to a physical therapist. He reported flare ups of pain approximately 2 to 3 times per month which feel “like bone-on-bone” spinal pain. He requires bedrest during these flare up episodes. On examination, the Veteran’s ROM was flexion of 45 degrees, extension of 5 degrees, lateral flexion of 20 degrees, bilaterally, right lateral rotation of 30 degrees, and left lateral rotation of 15 degrees. There was no additional limitation in ROM after repetitive use. The Veteran has functional loss of the back after repetitive use, less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and/ or weight bearing, were noted as contributing factors for the Veteran’s functional loss. The Veteran was noted to have localized tenderness, diffuse thoracolumbar, guarding severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. No muscle atrophy. Reflex exam was noted to be hypoactive on bilateral knee and ankles, sensory exam was normal for upper anterior thigh (L2), thigh/knee (L3/4) on both sides, right lower leg ankle (L4/L5/S1) and right foot/toes (L5), left lower leg ankle (L4/L5/S1) and left foot/toes (L5) were noted as decreased. The Veteran was noted to have radiculopathy on left lower extremity with mild constant pain, mild intermittent pain, and mild paresthesias. No numbness. Other neurologic abnormalities were complaints of bladder, and erectile dysfunction, but no EMG has been done to delineate possible effects from radiculopathy. The examiner noted that the Veteran does not have IVDS. At the November 2016 VA examination, the examiner noted diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, spinal and stenosis. The Veteran reported progressive pain, stiffness, numbness, and weakness and severe daily symptoms with limited relief with current treatments. Current treatment includes pain meds, physical therapy, acupuncture, activity modification. The Veteran reported flare ups described as daily, severe pain, stiffness, weakness and numbness. He described functional loss as “limits prolonged walking/standing/sitting, squats, stairs, jogging, jumping, lifting/carrying.” On examination, the examiner noted initial ROM as abnormal, forward flexion to 50 degrees, extension to 10 degrees, lateral flexion of 15 degrees, bilaterally, and lateral rotation to 15 degrees, bilaterally. The ROM itself contributes to a functional loss as it is restricted. Pain was noted on exam at all ROM. There was no evidence of pain with weight bearing. There was objective evidence of localized pain described as moderate TTP paraspinous. The Veteran was able to perform repetitive use testing and without additional loss of function or range. The examination was not conducted during a flare ups, however the examiner noted that it was medically consistent with the Veteran’s statements describing functional loss during flare ups. The examiner was unable to say without mere speculation if pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups as the Veteran was not examined during a flare up. The Veteran was noted to have guarding or muscle spasm not resulting in an abnormal gait or abnormal spinal contour. Additional factors contributing to disability are disturbance of locomotion, interference with sitting, and interference with standing. No muscle atrophy. Reflex exam was noted to be hypoactive on bilateral knee and ankles, sensory exam was normal for upper anterior thigh (L2), thigh/knee (L3/4) on both sides, right lower leg ankle (L4/L5/S1) and right foot/toes (L5), left lower leg ankle (L4/L5/S1) and left foot/toes (L5) were noted as decreased. The Veteran was noted to have radiculopathy on left lower extremity with severe intermittent pain, severe paresthesias and severe numbness. Nerve roots involved were L4/L5/S1/S2/S3 (sciatic nerve) with the left side severely affected. No ankylosis. The examiner noted as other neurologic abnormalities, the Veteran’s reports of urinary incontinence controlled with medication and of etiology unclear. The Veteran was noted to have IVDS, with no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the past 12 months. The Veteran uses braces, cane and tens units, regularly. The examiner remarked that documented objective findings regarding pain hold for both passive and active range of motion, both weight bearing and non-weight bearing. At the July 2019 examination, the Veteran reported that from the last examination he has had ongoing pain in the back “the whole back”, radiating down the left leg to the toes, with tingling and numbness. The back pain is present at rest, worse with any movement (rolling over in back, sitting, bending). The pain down the left leg is present at rest, can worsen with bending, prolonged sitting or standing. The Veteran does not report flare ups, do report functional loss. On examination, the examiner noted initial ROM as abnormal, forward flexion to 30 degrees, extension to 20 degrees, lateral flexion of 15 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. The ROM itself contribute to a functional loss as the Veteran finds any movement very painful. In daily life, he avoids bending at all due to significant pain. Pain was noted on exam at all ROM. There was no evidence of pain with weight bearing. There was objective evidence of localized pain described as tender throughout the back. The Veteran was unable to perform repetitive use testing, the examiner noted that “the effort causes too much pain, so I did not push him to do it.” The Veteran was noted to have guarding and muscle spasm resulting in an abnormal gait or abnormal spinal contour. Additional factors contributing to disability are disturbance of locomotion, interference with sitting and interference with standing. No muscle atrophy. Reflex exam was noted to be normal on bilateral knee and ankles, sensory exam was normal for upper anterior thigh (L2), right thigh/knee (L3/4), right lower leg ankle (L4/L5/S1) and right foot/toes (L5). Left thigh/knee (L3/4), left lower leg ankle (L4/L5/S1) and left foot/toes (L5) were noted as decreased. The Veteran was noted to have radiculopathy on right lower extremity with moderate constant pain, and severe intermittent pain; on left lower extremity with severe constant pain, severe paresthesias and severe numbness. Nerve roots involved were L4/L5/S1/S2/S3 (sciatic nerve) with the right side mildly affected and the left side severely affected. The examiner noted no ankylosis. No other neurological abnormalities. The Veteran was noted to have IVDS, with no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the past 12 months. The Veteran uses a cane constantly. The examiner noted that the Veteran’s back condition impact on his ability to work as he is unable to do any physical work at all due to pain and limited ROM. Analysis The Veteran contends that he is entitled to a higher disability rating for his lumbar spine degenerative disc disease, status post discectomy. Under the current general rating formula, the Veteran is not entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine unless he is shown to have unfavorable ankylosis of the entire spine. Ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine or the entire spine is fixed in flexion or extension. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). As reflected in each of the reports of the above cited VA examinations, the Veteran does not have symptoms productive of unfavorable ankylosis of the entire spine. For example, the VA examination of the thoracolumbar spine from November 2016 listed flexion at 50 degrees with no ankylosis and the July 2019 VA examination showed no ankylosis of the spine and forward flexion at 30 degrees. Even factoring the Veteran’s pain and flare-ups, examiners performed repetitive testing and still found some motion of the spine. None of the examiners or the VA treatment records reflected symptoms that more nearly approximated unfavorable ankylosis of the entire spine. Thus, the record evidence does not establish that the Veteran has ankylosis of his entire spine and a higher evaluation under the General Rating Formula is not warranted. Intervertebral disc syndrome may be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, the Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Under the IVDS Formula a 60 percent disability rating is the next higher rating that is provided for intervertebral disc syndrome based on incapacitating episodes. A 60 percent disability rating is warranted if the disability is productive of 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. 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. C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The November 2016 and July 2019 VA examiners indicate that the Veteran does suffer from intervertebral disc syndrome; however, as the record evidence on file contains no showing of incapacitating episodes of such requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past 12 months, a higher rating under the IVDS Formula is not warranted. The Board has also considered whether the Veteran has any associated objective neurological abnormalities associated with his service-connected degenerative joint disease of the lumbar spine. General Rating Formula, Note (1). The record shows that the Veteran is already in receipt of separate ratings for radiculopathy of the left leg and right lower extremity and those issues are not presently before the Board. Thus, the question is whether the Veteran has other associated neurological abnormalities associated with his lumbar spine disability. The evidence does not show that the Veteran has any other neurological abnormalities associated with the service-connected lumbar spine disability for which he is not already service connected. The Veteran stated that he has complaint about urinary incontinence at the April 2009 and May 2010 examinations, but the examiners did not mention anything about it. See November 2010 Form 9. The May 2010 examiner noted that the Veteran does not have abnormal bowel symptoms. The April 2013 examiner noted the Veteran’s complaints of bladder and erectile dysfunction, but no EMG has been done to delineate possible effects from radiculopathy. The November 2016 VA examiner noted the Veteran’s reports of urinary incontinence “controlled with medication and of etiology unclear.” The July 2019 examiner noted that there were no other neurological abnormalities. The remainder of the medical records does not show the presence of any neurological abnormalities shown to be associated with the lumbar spine disability, other than the separately rated radiculopathies that are not on appeal. A February 2020 VA examination for urinary tract, shows the Veteran has a voiding dysfunction due to urge incontinence diagnosed in 2015. The VA examiner opined that the Veteran’s urinary condition was less likely than not related to the Veteran’s thoracolumbar condition. The RO has addressed the issue of entitlement to service connection for urinary incontinence in a separate September 2020 rating decision, and this issue is not currently before the Board. In sum, a review of the claims file shows no evidence, of any other objective neurologic abnormalities associated with the lumbar spine disability, so as to warrant any additional separate disability rating on that basis. (Continued on the next page)   Here, the findings on VA examinations show the Veteran does have some motion and does not actually meet the criteria for the 100 percent evaluation presently assigned that contemplates unfavorable ankylosis of the entire spine. Moreover, he is separately rated for the neurological impairment in his lower extremities. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, Associate 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.