Citation Nr: 21066601 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-35 920 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected right ankle sprain is denied. Entitlement to a rating in excess of 10 percent prior to April 1, 2020 and a rating in excess of 20 percent on and after April 1, 2020 for service-connected chronic lumbar strain is denied. FINDINGS OF FACT 1. Prior to April 1, 2020 the Veteran's chronic lumbar strain manifested as pain on movement, with forward flexion greater than 60 degrees and a combined range of motion (ROM) greater than 120 degrees. 2. From April 1, 2020, the Veteran's chronic lumbar strain was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees and without ankylosis of the spine. 3. Throughout the appeal period, the Veteran's right ankle sprain was manifested by moderate limited ankle motion; neither marked limitation of motion nor ankylosis was demonstrated or approximated. CONCLUSIONS OF LAW 1. Prior to April 1, 2020, the criteria for entitlement to an increased rating greater than 10 percent for service-connected chronic lumbar strain are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5237. 2. From April 1, 2020, the criteria for entitlement to an increased rating greater than 20 percent for service-connected chronic lumbar strain are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to an increased rating greater than 10 percent for service-connected right ankle sprain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to December 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The appeal was remanded in June 2021 for additional development. It has since been returned to the Board for further appellate consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Board notes that 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; Ferguson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to a rating in excess of 10 percent for service-connected right ankle sprain. The Veteran seeks higher evaluations for his right ankle sprain, which has been evaluated at 10 percent from July 6, 2011. The Veteran's right ankle sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In a November 2011 statement the Veteran reported he experienced moderate to severe ankle pain. He also reported limited range of motion in his right foot. Private treatment records from February 2013 to March 2013 document the Veteran's right ankle condition is improving. A February 2013 private treatment record reflects the Veteran reported consistent aching and sharp pain worsened by daily activity with pain 7-8/10. The clinician noted the Veteran's pain was located in medial side of the ankle and heel along the posterior tibial tendon. Upon examination his right foot presented partially compensated forefoot varus and partially compensated rearfoot varus. The clinician noted the Veteran's posterior tibial tendon causes excessive pronation. The Veteran was treated with prescription medication and fitted for an Aircast walker. A March 2013 private treatment record noted a follow-up visit. The Veteran reported his condition had improved since his last visit and reported severity 1-2/10. Upon examination the right foot presented partially compensated forefoot varus and partially compensated rearfoot valgus. The clinician noted that because the Veteran was doing better, he was stepped down to a gameday brace. The brace added support to the injured ligaments of the ankle and reduced motion of the ankle joint. The Veteran was afforded a VA examination in November 2011. The examiner noted a diagnosis of pes planus with pronation and posterior tibialis tenosynovitis and dysfunction. The Veteran presented with a painful right foot and ankle secondary to his pes planus foot construct and posterior tibialis tenosynovitis. The Veteran reported weekly flare-ups that are precipitated by exercise, stance and ambulation and cause a limitation in activity due to pain and fatigue. Upon examination, initial range of motion testing showed 45 degrees of greater flexion; 10 degrees ankle dorsiflexion with pain. After repetitive use testing, no additional limitation of ROM was noted, but the following functional losses of the right ankle were noted: less movement than normal; excess fatigability; pain on movement; swelling; instability of station; and increase in inversion due to posterior tibialis tenosynovitis and laxity. Pain on palpation was noted. Right ankle laxity was noted. The Veteran was afforded a VA examination in May 2015. The examiner noted a diagnosis of right ankle sprain residual and right medial ankle sprain, residual. The Veteran reported daily pain which he described as achy medial side of malleolus. The Veteran denied stiffness, weather sensitives, and no falls. He reported that his right side is less flexible than his left. He further reported swelling, though pain was more frequent. He also reported use of an ankle brace but indicated he does not wear it when he goes to work. No flare-ups were reported. Upon examination, initial range of motion testing showed 45 degrees of greater flexion; 10 degrees ankle dorsiflexion with pain noted on exam but was further noted as not contributing to functional loss or limitation. There was evidence of pain with weight bearing, localized tenderness or pain on palpation. Crepitus was not noted. After repetitive use testing there was no additional loss of ROM noted. Neither pain, weakness, fatigability nor incoordination were noted as significantly limiting functional ability with repeated use over a period of time. Ankle instability was not noted. The examiner found that the Veteran's condition was mild. The examiner indicated the Veteran's right ankle condition did not impact his ability to perform any type of occupational task. The Veteran was afforded a VA examination in April 2020. The examiner noted a diagnosis of right ankle sprain. The Veteran reported pain. He also reported flare-ups twice a month that result in moderate pain on the inside of his ankle. The Veteran reported functional loss, describing he no longer washes the car or mows the lawn. Upon examination, initial range of motion testing showed 45 degrees of plantar flexion; 20 degrees ankle dorsiflexion with no pain noted on exam. There was no evidence of localized tenderness or pain on palpation, pain with weight bearing, or crepitus. The examiner noted the Veteran's ankle condition does not impact his ability to work. There was no objective evidence of pain on passive range of motion testing or when the joint is used in non-weight bearing. An April 2020 private treatment record documents the clinician found the right ankle showed no evidence of fracture or other significant bone or soft tissue abnormality. The record also reflected there were no arthritic change. The Veteran was afforded a VA examination in June 2021. The examiner noted a diagnosis of right ankle sprain and posterior tibial tendon dysfunction. The examiner explained the posterior tibial tendon dysfunction is a progression of the previous diagnosis and is an expected complication of the joint condition from repeated use and trauma. The Veteran reported constant right ankle pain with mild swelling. He also reported flare-ups 3 to 4 times a year lasting 3 to 4 days at time. He described sharp, throbbing pain with swelling, and he cannot ambulate. He also described "insidious onset with no precipitating factors". He reported during flare-ups his pain is 10/10 and he cannot walk. The Veteran reported functional loss. He reported that he cannot stand, walk for prolonged periods of time, wash his car, mow his lawn, and has difficulty doing most house chores. Upon examination, initial range of motion testing showed right ankle 30 degrees of plantar flexion; 15 degrees dorsiflexion endpoint with pain noted with active motion, passive motion that causes functional loss. The examiner found localized tenderness or pain on palpitation. Active range of motion testing showed right ankle plantar flexion to 30 degrees and dorsiflexion to 15 degrees with pain noted on plantar flexion and dorsiflexion. Passive range of motion testing showed right ankle plantar flexion to 30 degrees and dorsiflexion to 15 degrees with pain noted on plantar flexion and dorsiflexion. The examiner determined the Veteran's right ankle condition was moderate. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Neither pain, weakness, fatigability nor incoordination were noted as significantly limiting functional ability with repeated use over a period of time. There was no muscle atrophy or ankylosis of the right ankle noted. The Veteran occasionally uses assistive devices, braces, cane, or air-boot. The examiner found the Veteran's right ankle sprain impacts his ability to work. The Veteran reported he lost 2 to 4 weeks of work in the last 12 months. He described that his "pain is disruptive and distracting, causing decreased ability to sit, stand, walk, run and concentrate and focus on work related tasks and assignment." The Board acknowledges the Veteran's lay reports of symptoms and there was functional loss due to the factors documented in the VA examination reports, discussed above. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. The July 2021 VA examiner expressly considered and accepted the Veteran's account of his experienced symptoms and impairment when documenting that, with no functional impairment meeting the criteria for a higher rating for his right ankle. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code as there is no ankylosis of the ankle or subastagalar or tarsal joint, malunion of the os cal is or astragalus, astragalectomy, or impairment of the tibia and fibular with residual ankle disability. See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274, 5262. In conclusion, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for service-connected right ankle sprain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent prior to April 1, 2020 for service-connected chronic lumbar strain. During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's back disability has been rated under Diagnostic Code (DC) 5237 for degenerative disc disease of the spine. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DC 5237. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DCs 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with Intervertebral Disc Syndrome (IVDS) under DC 5243 and all other intervertebral disc disabilities under DC5 242. As such, DC 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); DC 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. Under the rating criteria in effect prior to February 2021, for purposes of evaluations under DC 5243 based on IVDS, 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 (1). Under the new criteria, Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Code 5242 is assigned for all other disc diagnoses As will be discussed below, the Board concludes that the Veteran does not have a diagnosis of IVDS. The regulatory changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. The Veteran's chronic lumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or combined range of motion of the entire thoracolumbar spine not greater than 120 degrees; or, if there is 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. Any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). During the course of the appeal, the Veteran underwent numerous VA examinations which the Board previously determined were inadequate insofar as the examiners did not estimate range of motion during flare-ups or on passive and non-passive weight bearing; however, the Board will consider other pertinent findings from those examinations. In a November 2011 statement the Veteran reported he experienced moderate to severe back pain over the past 10 years. He described back pain 4 to 5 times a week and at times his back tightens ups when sitting, standing, or walking. The Veteran was afforded a VA examination in November 2011. The Veteran reported his back stiffens up and he experiences pain in his lower back. Initial range of motion testing showed forward flexion to 90 degrees or greater; 30 degrees extension; 30 degrees right lateral flexion; 30 degrees left lateral flexion; 30 degrees right lateral rotation; and 30 degrees left lateral rotation. No pain was noted upon examination. The Veteran was able to perform repetitive use testing and forward flexion ended at 90 degrees or greater. After repetitive use testing, there was no additional loss of range of motion or functional loss. The examiner found no localized tenderness or pain to palpitation. The examiner did not find guarding or back spasms. There was 5/5 muscle strength. The examination did not show evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner found no radiculopathy or other neurologic abnormalities. The examination noted the Veteran did not use an assistive device. The examiner indicated the Veteran's back did not cause functional impairment. Private treatment records document in December 2012 the Veteran reported that "overall the lumbar complaint felt excellent since the last visit." The clinician noted the Veteran's range of motion had improved. The clinician diagnosed lumbosacral segment dysfunction, lumbalgia and muscle spasm. The Veteran was afforded a VA examination in May 2015. The examiner noted a diagnosis of lumbosacral strain. The Veteran reported that in the last 5 years he has had daily pain that he described as achy and occasionally sharp. He further reported occasional pain that goes down his posterior left leg into his calf 2 to 3 times per month. He further reported stiffness in the morning. He also reported working full time in finance and sitting a lot which causes tightness, necessitating his standing up and moving around. Use of a heating pad was noted. No flare-ups were reported. Initial range of motion testing showed forward flexion to 90 degrees or greater; 30 degrees extension; 30 degrees right lateral flexion; 30 degrees left lateral flexion; 30 degrees right lateral rotation; and 30 degrees left lateral rotation. No pain was noted upon examination. No evidence of pain was noted upon weight bearing. There was no further loss of ROM after repetitive use testing. The examiner found no radiculopathy or other neurologic abnormalities. The examination did not show evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. Neither pain, weakness, fatigability nor incoordination were noted as significantly limiting functional ability with repeated use over a period of time. Neither guarding nor muscle spasm were noted. Additionally, there was no muscle atrophy or ankylosis of the spine noted. The Board affords part of the November 2011 and May 2015 VA examinations low probative weight. The examination reports did not test for evidence of pain on non-weight bearing, passive, and active motion as required by Correia. Also, the examiners failed to obtain all relevant information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran as required by Sharp. The Board finds that a rating in excess of 10 percent prior to April 1, 2020 is not warranted. The evidence does not show forward flexion to in between 30 and 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At the November 2011 VA examination the Veteran had forward flexion of the thoracolumbar spine to 90 degrees, with a normal gait and no evidence of muscle spasm, tenderness, and no abnormal spinal contour or muscle atrophy. Repetitive use did not cause additional loss of range of motion. There was full muscle strength. A December 2012 private treatment record noted the Veteran reported his overall lumbar complaint felt excellent. Also, the clinician noted the Veteran's range of motion had improved. At the May 2015 VA examination the Veteran had forward flexion of the thoracolumbar spine to 90 degrees, with no evidence of muscle spasm, tenderness, and no muscle atrophy. Repetitive use did not cause additional loss of range of motion. On balance this does not warrant an increased evaluation prior to April 1, 2020. Entitlement to a rating in excess of 20 percent on and after April 1, 2020 for service-connected chronic lumbar strain. The Veteran was afforded a VA examination in April 2020. The examiner noted a diagnosis of chronic lumbar strain. The Veteran reported pain, muscle spasms, and radiating pain in left leg. The Veteran reported he experienced flare-ups when walking, sitting down, or sleeping in the bed too long. Initial range motion testing showed forward flexion to 40 degrees; 10 degrees extension; 10 degrees right lateral flexion, 10 degrees left lateral flexion; 10 degrees right lateral rotation; and 10 degrees left lateral rotation. Pain was noted on exam but does not result in/cause functional loss. The examiner noted range of motion contributed to the functional loss. The Veteran was unable to bend over to pick up items. No evidence of pain was noted upon weight bearing. There was objective evidence of moderate pain in the lower back. There was no further loss of ROM after repetitive use testing. Neither pain, weakness, fatigability nor incoordination were noted as significantly limiting functional ability with repeated use over a period of time. The examiner noted muscle spasm not resulting in abnormal gait or abnormal spinal contour. There was normal muscle strength noted. There was no muscle atrophy or ankylosis of the spine noted. The examiner diagnosed moderate left lower extremity radiculopathy affecting the sciatic nerve. The examiner found that the Veteran did not have bowel or bladder problems related to his thoracolumbar spine. The examination did not show evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner noted the Veteran's spine condition does not impact his ability to work. An April 2020 private treatment records document normal vertebral body heights and alignment with no evidence of a fracture or destructive lesion of the vertebrae. There was no discogenic change or arthritic change. The clinician noted normal bony posterior elements and paraspinal soft tissues. The Veteran was afforded a VA examination in June 2021. The examiner noted a diagnosis of chronic lumbar strain and left lower extremity radiculopathy. The Veteran reported constant lower back pain and stiffness with occasional radicular symptoms of the lower left extremity. No flare-ups were reported. He reported that standing, walking, and sitting make his condition worse. Initial range of motion testing showed forward flexion to 50 degrees; 20 degrees extension; 20 degrees right lateral flexion; 20 degrees left lateral flexion; 20 degrees right lateral rotation; and 20 degrees left lateral rotation. There was evidence of pain with active motion and pain that causes functional loss. The examiner indicated passive range of motion was not performed because it may cause the Veteran severe pain or the risk of further injury. No crepitus or objective evidence of localized tenderness or pain on palpation noted. The examiner noted the Veteran was able to perform repetitive use testing with no additional functional loss. Neither pain, weakness, fatigability nor incoordination were noted as significantly limiting functional ability with repeated use over a period of time. The examiner noted no localized tenderness, guarding, or muscle spasm of the spine. There was normal muscle strength noted. There was no muscle atrophy or ankylosis of the spine noted. The examiner found that the Veteran did not have bowel or bladder problems related to his thoracolumbar spine. The examination did not show evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner noted the Veteran's lumbar spine impacts his ability to perform occupational task. The Veteran reported missing 2 to 4 weeks of work in the last 12 months. He described the pain is disruptive and distracting, causing decreased ability to sit, stand, walk, or bend. The Board finds a rating in excess of 20 on and after April 1, 2020 is not warranted. At the April 2020 VA examination the Veteran's flexion was to 40 degrees and at the June 2021 the Veteran's flexion was to 50 degrees. This is in excess of 30 degrees and does not demonstrate ankylosis. The April 2020 VA examination report reflects the Veteran experienced pain that did not result in or cause functional loss. The Veteran reported functional limitations, such as unable to mow the lawn or wash his car, other findings do not demonstrate additional functional loss such that an increased evaluation is warranted. The examiner determined there were muscle spasms, but it did not result in abnormal gait or abnormal spinal contour. Also, the 2020 examination report noted no additional functional loss after repetitive-use testing. An April 2020 private treatment record reflects there were no discogenic change or arthritic change. Additionally, the private treatment record reflected normal vertebral body heights and alignment. At the June 2021 VA examination, the Veteran reported functional limitations, such as general limitations on standing walking and there was no use of assistive devices noted, the other findings do not demonstrate additional functional loss such that an increased evaluation is warranted. Moreover, there was full muscle strength. The examiner determined there were no muscle spasms, muscle atrophy or ankylosis. The examiner noted the Veteran was able to perform repetitive use testing with no additional functional loss. On balance, this does not warrant an increased evaluation due to additional functional loss. The Board finds that under the General Rating Formula, no separate evaluations are assigned for associated objective neurologic abnormalities as the Veteran has denied bowel and bladder impairments. 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, Note (1). Also, the Board has contemplated assigning a disability rating based on incapacitating episodes throughout the appeal period. There is no showing of physician-prescribed bed rest having a total duration of at least 6 weeks during any 12 months of either appeal period. Therefore, a favorable rating based on incapacitating episodes is not warranted. (Continued on the next page) In summary, the Board concludes that the preponderance of the evidence is against the claim for increased ratings for the Veteran's service-connected chronic lumbar strain for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.