Citation Nr: 21003607 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-36 996 DATE: January 22, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative disc disease with intervertebral disc syndrome (IVDS) and low back pain prior to May 11, 2015, and in excess of 40 percent, thereafter, is denied. Entitlement to a disability rating in excess of 20 percent for acromioclavicular joint separation of the left shoulder is denied. FINDINGS OF FACT 1. Prior to May 11, 2015, the Veteran’s degenerative disc disease with IVDS and low back pain did not manifest as forward flexion of the thoracolumbar spine to 30 degrees or less, including during flare-ups or with repeated use over time, or favorable ankylosis of the entire thoracolumbar spine. 2. From May 11, 2015, forward, the Veteran’s degenerative disc disease with IVDS and low back pain did not manifest as unfavorable ankylosis of the entire thoracolumbar spine or entire spine. 3. The Veteran’s acromioclavicular joint separation of the left shoulder has not been manifested limitation of motion of the arm to 25 degrees from the side. CONCLUSIONS OF LAW 1. Prior to May 11, 2015, the criteria for a disability rating in excess of 20 percent for degenerative disc disease with IVDS and low back pain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 2. From May 11, 2015, forward, the criteria for a disability rating in excess of 40 percent for degenerative disc disease with IVDS and low back pain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 3. The criteria for a disability rating in excess of 20 percent for acromioclavicular joint separation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5201-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2003 to May 2004 and from December 2005 to January 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision. In May 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran’s claims for increased ratings were remanded by the Board in May 2018 for further development. In a May 2020 rating decision, the Veteran’s degenerative disc disease with IVDS and low back pain was assigned a 40 percent disability rating, effective May 11, 2015. The Veteran’s acromioclavicular joint separation was assigned a 20 percent disability rating, effective July 14, 2009. As this rating decision represents partial grants of the benefits sought, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Increased Ratings 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 diseases and injuries and their residual conditions 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.   Separate diagnostic codes 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; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.   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, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).   The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40).   Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).   Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354.   The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint.   In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.   A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).   1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease with intervertebral disc syndrome (IVDS) and low back pain prior to May 11, 2015, and in excess of 40 percent, thereafter, is denied. The Veteran’s degenerative disc disease with IVDS and low back pain has been rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242 prior to May 11, 2015 and 40 percent disabling under Diagnostic Code 5243 from May 11, 2015, forward. The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Diagnostic Code 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula a 40 percent evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated. 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a Note (1). The Veteran was afforded several examinations to determine the severity of his low back disability. An August 2009 examination indicates that the Veteran reported experiencing stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. The Veteran stated that he has constant pain that is moderate and is exacerbated by physical activity and is relieved by rest and medication. During flare-ups, the Veteran has a slow gait, and an inability to bend, lift, climb, twist, and stand and sit for extended periods of time. The Veteran has had multiple spine injections, but has not been hospitalized nor had surgery on his low back. The Veteran’s disability has not resulted in incapacitation, but he is limited in walking, standing, and sitting, and he cannot climb, bend, twist, or lift. On physical examination in August 2009, the Veteran had muscle spasm described as paraspinal tenderness that produces an abnormal gait, and tenderness described as paraspinal lumbar area. The Veteran’s spinal contour was preserved, though there is tenderness. The Veteran does not have guarding of movement and the examination did not reveal any weakness. The Veteran’s muscle tone and musculature were normal. There was no ankylosis of the thoracolumbar spine. On initial range of motion testing, the Veteran had forward flexion to 90 degrees with pain at 60 degrees; extension to 30 degrees with pain at 10 degrees; right lateral flexion to 30 degrees with pain at 20 degrees; left lateral flexion to 30 degrees with pain at 20 degrees; and right and left rotation to 30 degrees with pain at 30 degrees. On repetitive range of motion testing, the Veteran did not have additional degrees of limitation. The Veteran was limited by pain after repetitive use. The Veteran had normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. A December 2011 VA treatment record showed that the Veteran could touch his toes with pain at 90 degrees, and in May 2012 he had pain at end range of motion. The Veteran was provided with a July 2014 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has chronic daily low back pain and stiffness with intermittent left lower extremity radiculopathy. The Veteran’s radiculopathy extends through the left buttock and left posterior thigh and sometimes radiates into the left groin or scrotum. The Veteran has flare-ups that are exacerbated by repetitive bending, heavy lifting, and prolonged sedentary activity. The Veteran has pain, stiffness, and spasms during a flare-up that occur approximately once per week with varying degrees of severity, some with radiculopathy causing painful weightbearing activity and truncal movement. Initial range of motion testing in July 2014 showed forward flexion to 90 degrees with painful motion at 70 degrees; extension to 30 degrees with painful motion at 20 degrees; right and left lateral flexion and right and left lateral rotation to 30 degrees with painful motion at 30 degrees. The Veteran did not have additional limitation of range of motion on repetitive-use range of motion testing, but had pain on movement. The Veteran had localized tenderness of the lumbosacral transition, left side greater than right side. The Veteran demonstrated muscle spasm of the thoracolumbar spine that does not result in abnormal gait or abnormal spinal contour. Muscle strength testing and reflex examination were normal, and the Veteran did not have muscle atrophy. The Veteran did not have ankylosis of the spine. The July 2014 examination report states that the Veteran has IVDS of the thoracolumbar spine, but has not had any incapacitating episodes of the past 12 months due to IVDS. The Veteran does not use an assistive device. The Veteran’s low back disability impacts his ability to work as it does not allow him to perform occupational activities requiring heavy lifting. The Veteran was afforded a May 2015 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The Veteran advised of progressively worsening low back pain that radiates to the left leg and left testicle area. The Veteran reported flare-ups of increased pain that occur with repetitive forceful exertions, especially when lifting, bending, and prolonged sitting. In terms of functional impairment, the Veteran was unable to bend and twist and carry heavy loads when his pain is severe. Initial range of motion testing showed forward flexion to 50 degrees; extension to 30 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees per the May 2015 examination report. The Veteran’s range of motion contributes to a functional loss as he is unable to easily reach below his knee level due to pain. The Veteran has pain on forward flexion that causes functional loss. There was no evidence of pain on weightbearing. The Veteran had tenderness of the lower lumbar muscles on his left side and left lower abdominal muscles extending to the groin. The Veteran did not have additional loss of function or range of motion on repetitive-use testing. The May 2015 examination report states that pain significantly limits functional ability with repeated use over time and with flare-up. Range of motion during a flare-up was described as forward flexion to 30 degrees; extension to 30 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees. The Veteran has muscle spasm and localized tenderness that do not result in abnormal gait or abnormal spinal contour according to the examination report. The Veteran’s muscle strength testing and reflex examination were normal, and he did not have muscle atrophy or ankylosis. The May 2015 examination report states that the Veteran has IVDS of the thoracolumbar spine, but has not had any incapacitating episodes of the past 12 months due to IVDS. The Veteran does not use an assistive device. The Veteran’s low back disability impacts his ability to work with heavy lifting, jumping from heights, and sudden twisting. A June 2015 VA Hip and Thigh Conditions Disability Benefits Questionnaire demonstrates that the Veteran had forward flexion to 30 to 40 degrees; extension to 20 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 30 degrees. The Veteran was provided with an April 2017 VA Back (Thoracolumbar Spine) Disability Benefits Questionnaire. The examination report states that the Veteran has received physical therapy, corticosteroid epidural injections, sacroiliac joint injections, and trigger point injections as medical treatment for his lower back disability. The Veteran has intermittent radicular pain extending through the left buttock and left posterior lateral thigh and occasionally radiating into the groin and scrotum. The Veteran’s primary pain follows the L4 distribution, which is consistent with MRI imaging and documented foraminal impingement. The Veteran described daily low back pain. The majority of the Veteran’s intermittent flare-ups are caused by heavy lifting or repetitive forward bending and occur approximately once per month and last for several days. The April 2017 examination report demonstrates that initial range of motion testing produced forward flexion to 80 degrees; extension to 20 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees. Pain was noted on the examination during forward flexion, extension, and right and left lateral flexion, but it did not result in or cause functional loss. There was no evidence of pain on weightbearing. The Veteran had myofascial tenderness in the lumbosacral transition region, bilaterally. The Veteran did not have additional loss of function or range of motion on repetitive-use testing. The examination report states that the Veteran has pain and lack of endurance that significantly limit functional ability with repeated use over time and pain significantly limits functional ability with flare-ups. The examination report notes that the Veteran has guarding that results in abnormal gait or abnormal spinal contour and that he has less movement than normal due to ankylosis, adhesion, etc. Muscle strength testing and reflex examination were normal, and the Veteran did not have muscle atrophy or ankylosis. The April 2017 examination report states that the Veteran has IVDS of the thoracolumbar spine, but has not had any incapacitating episodes of the past 12 months due to IVDS. The Veteran does not use an assistive device. The Veteran’s low back disability impacts his ability to perform occupations requiring prolonged or exertional weightbearing, bending, stooping, reaching, lifting, carrying, and climbing. Passive range of motion testing was not performed as it was not feasible in a safe and reasonable manner and a non-weightbearing assessment was not applicable because there was no objective evidence of pain when the spine was in a non-weightbearing position at rest. Lastly, the Veteran was afforded a March 2019 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has daily low back pain with intermittent radiation to his left leg. The Veteran reported flare-ups of increased pain and decreased function, particularly with overuse. Concerning functional impairment, the Veteran avoids heavy lifting and repetitive use because of his low back disability. Initial range of motion testing produced forward flexion to 50 degrees; extension to 20 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 25 degrees on the March 2019 examination report. The Veteran’s range of motion itself contributes to functional loss when bending forward. The Veteran had pain on forward flexion that causes functional loss. There was pain on weightbearing. There was no additional loss of function or loss of range of motion after three repetitions. The March 2019 examination report states that pain significantly limits functional ability with repeated use over a period of time and with flare-ups. When described in terms of range of motion, the Veteran had forward flexion to 30 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal and reflex examination were normal and he did not have muscle atrophy or ankylosis of the spine. The March 2019 examination report states that the Veteran has IVDS of the thoracolumbar spine, but has not had any incapacitating episodes of the past 12 months due to IVDS. The Veteran does not use an assistive device. The Veteran’s low back disability does not affect his performance or fitness as a state police officer, but he may have difficulty with more strenuous occupations. Passive range of motion testing was not performed as it could not be performed in a safe manner and there was pain when the back was used in non-weightbearing. The Veteran’s VA treatment records describe the severity of the Veteran’s low back disability. Generally, the Veterans’ treatment records document consistent complaints of chronic back pain. In particular, a May 2012 VA Physical Medicine Rehabilitation Consultation states that the Veteran rates his back pain at a 5 or 6 out of time generally, with acute episodes of increased pain. The Veteran’s flare-ups are aggravated by prolonged standing, are more or less continuous, and are alleviated by lying down and taking Ibuprofen. He also reports feeling popping and clicking in his low back. The Veteran experiences pain at the end range of lumbar flexion and extension. The Veteran’s pain is in the lower left sacroiliac area, which is tender to palpation and stress testing. He does not have pain on palpation of the lumbar spine. In terms of diagnostic testing, a March 2008 lumbar spine MRI showed no evidence of fracture or malalignment; preserved disc spaces; Schmorl’s nodes noted inferior plates inferior two interspaces of no clinical significance; and intact Pedicles. The Veteran had a normal MRI study of the lumbar spine in June 2009. In July 2015, a low back MRI showed preserved lumbar spine disc spaces. A February 2016 MRI of the Veteran’s lumbar spine showed that the there is a small left foraminal disc protrusion at L4-5 with possible impingement on the exiting left L4 nerve root, mild multilevel facet arthropathy, and no central stenosis. The Veteran also described the severity of his low back disability. In a September 2013 written statement, the Veteran advised that his lower back pain is worsening, and he takes pain relievers daily. In the Veteran’s October 2014 VA Form 9, Appeal to the Board of Veterans’ Appeals, he stated that he has constant back pain, takes pain medicine, and an MRI shows a small tear from tightness in his back. During the May 2015 hearing, the Veteran provided that he receives treatment for his lower back at VA. He works full-time as a state trooper and his duty belt causes low back pain. The Veteran has not received any accommodations at work due to his low back disability, but he has missed approximately four months of work due to his back and shoulder. The Veteran experiences low back pain and radiating tingling and numbness down his left side. The Veteran’s low back disability prevents him from performing household chores that require a lot of bending and exercising. The Veteran also has trouble ascending and descending stairs, standing for extended periods of time, walking, and running. The Veteran has daily flare-ups that are incapacitating at times and he takes Ibuprofen to alleviate moderate pain and opioids for severe pain. The Veteran described incapacitating flare-ups that require bedrest for several days to a week that occurs approximately once per month, but that he works through the pain. The Board notes the Veteran is competent to report experiencing low back symptomatology, as the onset, frequency, and duration of such symptoms as pain, weakness, stiffness, swelling, fatigability, locking, buckling, and lack of endurance are certainly capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Additionally, the Board finds that the Veteran is credible in reporting his low back symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). As noted above, the Veteran’s degenerative disc disease with IVDS and low back pain has been rated as 20 percent disabling prior to May 11, 2015. At worst, during this time period, the August 2009 and July 2014 examinations showed that the Veteran had forward flexion to 90 degrees and no additional loss of range of motion on repetitive-use testing. The Veteran described flare-ups of pain, stiffness, and spasms that result in functional impairment of an inability to bend, lift, climb, twist, and stand and sit for long periods of time. In light of the above medical and lay evidence, with consideration of the factors of pain and functional loss as described above, the Board finds that a disability rating in excess of 20 percent for the Veteran’s degenerative disc disease with IVDS and low back pain under Diagnostic Code 5242 is not warranted prior to May 11, 2015. 38 C.F.R. §§ 4.40, 4.45; 4.59; 4.71a, Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. At no point during the appeal was the Veteran’s forward flexion limited to 30 degrees or less, including when considering the Veteran’s reports of flare-ups or with repetitive-use testing, or favorable ankylosis of the entire thoracolumbar spine or entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran’s degenerative disc disease with IVDS and low back pain has been rated as 40 percent disabling from May 11, 2015, forward. Based on the above evidence, a disability rating in excess of 40 percent is not warranted for the Veteran’s degenerative disc disease with IVDS and low back pain. A 40 percent disability rating is the highest rating available for limitation of motion of the thoracolumbar spine. A higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Further, the evidence does not indicate that the Veteran has had favorable ankylosis of the entire thoracolumbar spine or entire spine during this time period. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran has also been diagnosed with intervertebral disc syndrome. To assign a rating under this formula, there must be incapacitating episodes requiring bedrest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note (1). For the entire appellate period, there is no showing that the Veteran has had incapacitating episodes of IVDS. While the Veteran advised during the May 2015 hearing that he experiences flare-ups of low back pain that are incapacitating and require bedrest, he also indicated that he works through this pain. Further, there is no showing that bedrest has been prescribed by a physician. Thus, the criteria for a higher disability rating under the Formula for Rating IVDS are not satisfied. The Veteran has been assigned a separate 10 percent rating for radiculopathy of the right lower extremity under DC 8520, effective April 1, 2017; as well as a separate 10 percent rating for radiculopathy of the left lower extremity under DC 8520, effective July 22, 2014. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (Any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code). There was no evidence of right lower extremity radiculopathy prior to April 1, 2017, or of left lower extremity radiculopathy prior to July 22, 2014. The September 2009 VA examination report revealed normal neurological evaluation of both lower extremities. A May 2012 VA Physical Rehabilitation consultation showed no focal, motor, sensory or reflex deficits in the Veteran’s lower extremities. On VA examinations in July 2014 and May 2015, neurological examination of the right lower extremity was normal and the examiners reported that the Veteran’s right lower extremity was not affected by radiculopathy. Accordingly, a separate rating is not warranted for radiculopathy of the right lower extremity prior to April 1, 2017, or for left lower extremity radiculopathy prior to July 22, 2014. In sum, the preponderance of the evidence demonstrates a disability rating in excess of 20 percent prior to May 11, 2015 is not warranted for the Veteran’s degenerative disc disease with IVDS and low back pain. Additionally, the Veteran’s degenerative disc disease with IVDS and low back pain does not warrant a disability rating in excess of 40 percent disability rating from May 11, 2015, forward. Therefore, the benefit-of-the-doubt rule does not apply, and disability ratings in excess of those assigned are denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55.  2. Entitlement to a disability rating in excess of 20 percent for acromioclavicular joint separation is denied. The Veteran’s left shoulder disability is rated under Diagnostic Codes 5201-5203 as 20 percent disabling. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5201 pertains to limitation of motion of the arm. 38 C.F.R. § 4.71a. The ratings assigned under Diagnostic Code 5201 differ depending on whether the disability involves the major (dominant) or minor (non-dominant) extremity. The Veteran’s right arm is his major extremity, according to the evidence contained in his claims folder. See 38 C.F.R. § 4.69. Thus, the disability ratings assigned for limitation of motion of the minor upper extremity apply. VA regulation defines normal range of shoulder motion as forward elevation (flexion) from 0 to 180 degrees; abduction from 0 to 180 degrees; internal rotation from 0 to 90 degrees; and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Lifting the arm to shoulder level means lifting it to 90 degrees. See id. Under Diagnostic Code 5201, as applicable to the minor upper extremity, a 20 percent rating is assigned for limitation of motion of the arm to shoulder level; a 20 percent rating is assigned for limitation of motion to midway between the side and shoulder level; and a 30 percent rating is assigned for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a. Limitation of motion under Diagnostic Code 5201 may be compensated based on limitation of abduction or limitation of flexion—the two planes of movement involving lifting the arm from the side—whichever would afford the higher rating. Yonek v. Shinseki, 722 F.3d, 1355, 1358-59 (2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)). However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code. Id. (holding that “the plain language of [DC] 5201…allows only a single rating for ‘limitation of motion of’ an arm”). Under Diagnostic Code 5203, impairment of the clavicle or scapula is rated. A 10 percent disability rating is warranted for nonunion without loose movement, or for malunion. A 20 percent disability rating is warranted for nonunion with loose movement. A 20 percent disability rating is also warranted for dislocation. 38 C.F.R. § 4.71a. DC 5203 also provides, “Or rate on impairment of function of contiguous joint.” The Veteran was afforded several examinations to evaluate the severity of his left shoulder disability. An August 2009 examination indicates that the Veteran reported being diagnosed with a shoulder separation and that he experiences stiffness, lack of endurance, deformity, tenderness, and pain. The Veteran advised that he has flare-ups many times per day that last for several hours. The Veteran rated his flare-ups as a 3 out of 10 and are precipitated by physical activity and lying on his left side and are alleviated by rest. The Veteran cannot lift or perform overhead activities during a flare-up. The Veteran treats with Ibuprofen, two to three times per day, he has never been hospitalized or had surgery for his disability, and has not been incapacitated as a result. In terms of functional impairment, the Veteran experiences pain much of the time and is limited in performing overhead activities and lifting with his left arm. On physical examination, the Veteran had weakness, tenderness, and deformity, but no signs of edema, instability, abnormal movement, effusion, redness, heat, guarding of movement, malalignment, drainage, or subluxation. The Veteran did not have ankylosis. On initial range of motion testing in August 2009, the Veteran had flexion to 170 degrees with pain at 90 degrees; abduction to 160 degrees with pain at 90 degrees; external rotation to 80 degrees with pain at 60 degrees; and internal rotation to 60 degrees with pain at 60 degrees. On repetitive range of motion testing, the Veteran did not have additional limitation of motion. The Veteran’s joint is additionally limited after repetitive use with pain, fatigue, and lack of endurance. The Veteran was also afforded a July 2014 VA Shoulder and Arm Conditions Disability Benefits Questionnaire. The Veteran has radiographic evidence of a chronic left acromioclavicular (AC) joint separation with instability. The lateral aspect of the Veteran’s left clavicle is displaced superiorly by two centimeters with internal rotation and on centimeter with external rotation. The Veteran described chronic left shoulder pain on a daily basis that occurs with sleeping or lying against his left side. The Veteran also advised of pain during reaching activities, particularly with reaching overhead. The Veteran reported that he has missed work as a state trooper on two occasions in 2012 and 2013 for several weeks at a time because of exacerbations of his chronic left shoulder condition. The Veteran provided that he has flare-ups or pain and guarding on the left shoulder during exertional activity. The Veteran stated that he lost 7 months of work because of flare-ups. Initial range of motion testing in July 2014 showed the Veteran had flexion to 180 degrees, abduction to 180 degrees, left shoulder flexion to 145 degrees with painful motion that begins at 130 degrees, and left shoulder abduction to 155 degrees with painful motion that begins at 140 degrees. The Veteran did not have additional limitation in range of motion following repetitive-use testing. The examination report states that the Veteran has less movement than normal, excess fatigability, incoordination, pain on movement, and deformity after repetitive-use testing. The Veteran has localized tenderness or pain on palpation and guarding of the left shoulder. Strength testing was active against some resistance. The Veteran did not have ankylosis of the glenohumeral articulation. There is no history of recurrent dislocation of glenohumeral joint. The Veteran has chronic instability of the left AC joint with tenderness on palpation. The examination report states that the Veteran provided a reasonable and credible account of significant flare-ups of the left shoulder disability that are sufficient to cause him extended periods of lost time from work. The Veteran was provided with a May 2015 VA Shoulder and Arm Conditions Disability Benefits Questionnaire. The Veteran reported flare-ups of the left shoulder that resulted in missing several days of work. In terms of functional impairment, the Veteran is unable to perform forceful exertions with the left arm above his head because of his left shoulder disability. Initial range of motion testing showed the Veteran had flexion to 170 degrees, abduction to 160 degrees, external rotation to 90 degrees and internal rotation to 90 degrees during the May 2015 examination. The Veteran did not have pain on examination. There was no pain with weightbearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran did not have additional functional loss or range of motion after three repetitions. Pain, weakness, fatigability, or incoordination do not limit the Veteran’s functional ability with repeated use over a period of time or during a flare-up. The Veteran’s muscle strength was active against some resistance and he did not have muscle atrophy. The Veteran did not have ankylosis or instability, dislocation, or labral pathology. The Veteran has dislocation (acromioclavicular separation or sternoclavicular dislocation) of the left shoulder. There is tenderness on palpation of the AC joint. The May 2015 examination report provides that the Veteran does not have loss of head, nonunion, or fibrous union of the humerus. The Veteran does not have malunion of the humerus with moderate or marked deformity. The Veteran does not use an assistive device. In terms of the impact of the Veteran’s left shoulder on his ability to perform any type of occupational task, he is limited in using sudden forceful exertions. The Veteran was also afforded an April 2017 VA Shoulder and Arm Conditions Disability Benefits Questionnaire. The Veteran reported pain with reaching, heavy lifting and pushing maneuvers such as a push-up or bench press. The Veteran indicated that he has chronic, severe left shoulder pain. The Veteran advised of intermittent flare-ups with exertional activity and certain motions that result in increased pain and activity avoidance. In terms of functional impairment, the Veteran stated that he has painful and decreased range of motion. Initial range of motion testing showed the Veteran had flexion to 120 degrees, abduction to 150 degrees, external rotation to 75 degrees and internal rotation to 85 degrees during the April 2017 examination. There was pain noted on flexion, abduction, and external rotation on examination that causes functional loss of interfering with overhead reach. There was evidence of pain with weightbearing. The Veteran had tender palpation over the acromioclavicular joint and subacromial space. There was no objective evidence of crepitus. The Veteran did not have additional functional loss or range of motion after three repetitions. Pain and lack of endurance limit the Veteran’s functional ability with repeated use over a period of time. Pain limits the Veteran’s functional ability of during a flare-up. The Veteran’s muscle strength was active against some resistance and he did not have muscle atrophy. The Veteran did not have ankylosis or instability, dislocation, or labral pathology. The Veteran has dislocation (acromioclavicular separation or sternoclavicular dislocation) of the left shoulder and chronic instability of the left AC joint. There is tenderness on palpation of the AC joint. The April 2017 examination report provides that the Veteran does not have loss of head, nonunion, or fibrous union of the humerus. The Veteran does not have malunion of the humerus with moderate or marked deformity. The Veteran does not use an assistive device. In terms of the impact of the Veteran’s left shoulder on his ability to perform any type of occupational task, he is unable to perform occupational tasks requiring overhead reach, heavy lifting, or carrying, pushing, or pulling. There was objective evidence of pain on passive range of motion testing and when the joint was used in non-weightbearing, and the opposing joint is undamaged with no examination abnormalities. Lastly, the Veteran was provided with a March 2019 VA Shoulder and Arm Conditions Disability Benefits Questionnaire. The Veteran stated that he has pain in his shoulder with any activity that requires lifting his arm and that he experiences flares of pain with overuse. Regarding functional loss, the Veteran’s left shoulder disability limits his golf, lifting, and any activity involving lifting or raising his left arm. Initial range of motion testing showed the Veteran had flexion to 80 degrees, abduction to 70 degrees, external rotation to 20 degrees and internal rotation to 60 degrees per the March 2019 examination report. The Veteran’s range of motion itself contributes to functional loss as he cannot perform overhead activities. Pain on flexion, abduction, and external rotation was noted on the examination and causes functional loss. There was not pain with weightbearing. The Veteran did not have objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or crepitus. There was no additional functional loss or range of motion loss after three repetitions. The March 2019 examination report indicates that the Veteran has pain that significantly limits functional ability with repeated use over a period of time. When described in terms of range of motion, the Veteran had flexion to 80 degrees, abduction to 70 degrees, external rotation to 20 degrees, and internal rotation to 60 degrees. Additionally, the Veteran has pain that significantly limits functional ability with flare-ups. When described in terms of range of motion, the Veteran had flexion to 80 degrees, abduction to 70 degrees, external rotation to 20 degrees, and internal rotation to 60 degrees. The Veteran’s muscle strength testing was normal, and he did not have muscle atrophy or ankylosis. The examination report indicates that the Veteran has dislocation (acromioclavicular separation or sternoclavicular dislocation) of the left shoulder. The Veteran has clavicle or scapula condition that affects his range of motion. The March 2019 examination report states that there is tenderness on palpation of the AC joint. the Veteran does not have loss of head, nonunion, or fibrous union of the humerus. The Veteran does not have malunion of the humerus with moderate or marked deformity. The Veteran does not use an assistive device. In terms of the impact of the Veteran’s left shoulder on his ability to perform any type of occupational task, he may have difficulty with more strenuous occupations, but his back and shoulder disabilities have not affected his performance or his ability to maintain fitness requirements. There was evidence of pain on passive range of motion testing and when the joint was used in non-weightbearing. The Veteran’s VA treatment and private treatment records also demonstrate the severity of his acromioclavicular joint separation. The Veteran’s VA treatment records generally show constant complaints of left shoulder pain. Diagnostic imaging from March 2008 showed that the Veteran had left AC separation described as separation with lateral aspect of the left clavicle displaced superiorly in relation to the acromion by two centimeters with internal rotation and one centimeter with external rotation. A January 2013 VA Physical Medicine Rehabilitation Consultation indicate that the Veteran has left shoulder abduction to 90 degrees and forward flexion to 90 degrees. The Veteran was afforded an MRI of the left shoulder in May 2013 that showed tendinosis versus small articular surface tear of the infraspinatus tendon, deformity of the distal clavicle which may be the result of an old fracture and marked inferior off-set of the acromion probably associated with impingement as described, mild joint effusion and mild effusion subacromial-subdeltoid bursa, and some findings suspicious for a labral tear. The Veteran also described the severity of his left shoulder disability. In a September 2013 written statement, the Veteran stated that he has a torn tendon in his shoulder that was caused by his shoulder separation. In the Veteran’s October 2014 VA Form 9, Appeal to the Board of Veterans’ Appeals, he stated that his left shoulder is deformed. The Veteran also advised that an MRI shows that he separated his shoulder and tore his rotator cuff, he has constant shoulder pain, takes pain medicine, and cannot participate in golf or baseball. During the May 2015 hearing, the Veteran provided that he receives treatment for his left shoulder at VA. At work, the Veteran’s vest bothers his shoulder and he experiences a pinching sensation. The Veteran advised that he had an injection for his shoulder and that he missed approximately four consecutive months of work. The Veteran also has trouble swinging a golf club or baseball bat, sleeping on his left side, and carrying his children. He experiences a sharp, pinching pain after aggravating his shoulder. The Veteran stated that he has trouble raising his left arm to his shoulder level. The Veteran has daily flare-ups of his shoulder that requires Ibuprofen. The Board notes the Veteran is competent to report experiencing left shoulder symptomatology, as the onset, frequency, and duration of such symptoms as pain, weakness, stiffness, swelling, fatigability, locking, buckling, and lack of endurance are certainly capable of lay observation. See Barr, 21 Vet. App.at 307-08; see also Jandreau, 492 F.3d 1372; Davidson, 581 F.3d 1313; see also Layno, 6 Vet. App. 470; Young, 766 F.3d at 1353. Additionally, the Board finds that the Veteran is credible in reporting his left shoulder symptomatology. See Caluza, 7 Vet. App. at 711, aff’d, 78 F.3d 604. The preponderance of the evidence shows that the criteria for a disability rating higher than 20 percent are not met. Specifically, range of motion testing results did not demonstrate that the Veteran’s left shoulder flexion and/or abduction was limited to to 25 degrees from his side. The Board notes that examination reports indicate that the Veteran has less movement than normal, excess fatigability, incoordination, pain on movement, and deformity after repetitive-use testing. The Veteran also has pain and lack of endurance with repeated use over time that significantly limits functional ability, and pain during a flare-up that significantly limits functional ability. However, while the Veteran described difficulty lifting his arm to his shoulder level, he expressed that most of his impairment occurs with forceful exertions involving the left shoulder and overhead activities. Additionally, range of motion estimates on repetitive-use testing and during flare-ups did not result in flexion or abduction to 25 degrees from side. Therefore, in light of the above medical and lay evidence, with consideration of the factors of pain and functional loss as described above, the Board finds that a disability rating in excess of 20 percent for the Veteran’s acromioclavicular joint separation is not warranted based on limitation of range of motion. 38 C.F.R. §§ 4.40, 4.45; 4.59; 4.71a, Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. Further, the Veteran cannot be assigned a higher disability rating under Diagnostic Code 5203. (Continued on the next page)   The Veteran has not had ankylosis of the shoulder or impairment of the humerus as shown in the above examination reports. Accordingly, no other diagnostic code pertaining to the shoulder and arm is applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. In sum, the preponderance of the evidence demonstrates a disability rating in excess of 20 percent is not warranted for the Veteran’s acromioclavicular joint separation. Therefore, the benefit-of-the-doubt rule does not apply, and a disability rating in excess of the assigned rating is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.