Citation Nr: 21069066 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-30 003 DATE: November 17, 2021 ORDER Entitlement to an initial rating for service-connected intervertebral disc syndrome greater than 10 percent disabling prior to October 4, 2012, and greater than 20 percent disabling from October 4, 2012, to November 7, 2018, is denied. FINDINGS OF FACT 1. Prior to October 4, 2012, symptoms of the Veteran's thoracolumbar spine disability were not manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 2. Prior to October 4, 2012, symptoms of the Veteran's thoracolumbar spine disability were not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 3. Prior to October 4, 2012, symptoms of the Veteran's thoracolumbar spine disability were not manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 4. Prior to October 4, 2012, symptoms of the Veteran's thoracolumbar spine disability were not manifested by unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 5. Prior to October 4, 2012, symptoms of the Veteran's thoracolumbar spine disability were not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 6. Prior to October 4, 2012, symptoms of the Veteran's thoracolumbar spine disability were not manifested by unfavorable ankylosis of the entire spine. 7. Between October 4, 2012 and November 6, 2018, symptoms of the Veteran's thoracolumbar spine disability were not manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 8. Between October 4, 2012 and November 6, 2018, symptoms of the Veteran's thoracolumbar spine disability were not manifested by unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 9. Between October 4, 2012 and November 6, 2018, symptoms of the Veteran's thoracolumbar spine disability were not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 10. Between October 4, 2012 and November 6, 2018, symptoms of the Veteran's thoracolumbar spine disability were not manifested by unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for entitlement to an initial rating for service-connected intervertebral disc syndrome greater than 10 percent disabling prior to October 4, 2012, and greater than 20 percent disabling from October 4, 2012, to November 7, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7. 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 1985 to May 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2011, August 2018, April 2020, and September 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Winston Salem, North Carolina and Roanoke, Virginia. Jurisdiction now lies with the Roanoke, Virginia RO. In his August 2015 substantive appeal, the Veteran indicated, "I want a BVA hearing by live videoconference." See August 2015 VA Form 9, Appeal to Board of Veterans' Appeals. In September 2018 correspondence, the Veteran withdrew his hearing request. See September 2018 Veteran Correspondence ("I withdraw my request for a BVA videoconference hearing."). The matter was remanded in December 2018 for a VA examination to "address the current severity of the Veteran's intervertebral disc syndrome." See December 2018 BVA Decision. In a July 2020 Board Decision, the Veteran was denied a rating greater than 10 percent disabling prior to October 4, 2012, granted an increased rating of 20 percent disabling, but no higher, from October 4, 2012, to November 7, 2018, and granted an increased rating of 40 percent disabling, but no higher, from November 8, 2018, for his service-connected intervertebral disc syndrome. The Veteran filed a timely notice of appeal (NOA) with the United States Court of Appeals for Veterans Claims (CAVC). In a July 2021 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board's July 2020 Decision to the extent that it denied the Veteran entitlement to an initial rating greater than 10 percent disabling prior to October 4, 2012, and a rating in excess of 20 percent disabling from October 4, 2012, to November 7, 2018, for his service-connected intervertebral disc syndrome. See July 2021 CAVC Decision. The matter is returned to the Board for further consideration. 1. Entitlement to an initial rating for service-connected intervertebral disc syndrome greater than 10 percent disabling prior to October 4, 2012, and greater than 20 percent disabling from October 4, 2012, to November 7, 2018. Duty to Notify and Assist VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by May 2011 VA VCAA Notice Acknowledgement. See also October 2011 VA Rating Decision Narrative, July 2015 Statement of the Case, August 2018 VA Rating Decision Narrative, August 2018 Supplemental Statement of the Case (SSOC), September 2018 VA Notification Letter, September 2018 VA Form 27-0820, Report of General Information, December 2018 BVA Decision, April 2020 VA Rating Decision Narrative, April 2020 SSOC, and September 2020 VA Rating Decision Narrative. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, service treatment records and VA and private treatment records were obtained and associated with the claims file and evidence of record. The Veteran has not identified any additional, outstanding records relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See April 2013 Veteran VCAA Notice Acknowledgement ("I will send more information or evidence to VA to support my claim. VA will wait the full 30 days from the date of the letter sent with this notice response before deciding my claim."). Further, the entire record was available to the April 2018 and October 2019 medical examiners, Back (Spine) Conditions examinations were performed, and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.71a. Any defects identified in the July 2011 and April 2018 medical examinations, including "severity, frequency, and duration of the flare-ups" and "whether, or to what degree, [Veteran] had additional functional loss during flare-ups that could be expressed in terms of loss of range of motion," were cured by the October 2019 medical examination. See December 2018 BVA Decision and July 2021 CAVC Decision. To the extent that the examinations were able to record and address any applicable rating criteria, the Board will rely on the July 2011, April 2018, and October 2019 examinations in evaluating the Veteran's claim for increased rating. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) and in keeping with principles of basic fairness, in the spirit of the non-adversarial nature of VA benefits adjudication, to assist the Veteran. See Gambill v. Shinseki, 576 F.3d 1307 (Fed. Cir. 2009) (quoting Prickett v. Nicholson, 20 Vet. App. 370, 382 (2006) ("[C]reating a procedural right in the name of fair process principles [for applicants for VA disability benefits] is primarily based on the underlying concept of the VA adjudicatory scheme, not the U.S. Constitution."). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO's efforts have substantially complied with the instructions contained in the December 2018 BVA and July CAVC 2021 remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Increased Ratings Disability evaluations are determined by the application of facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) in 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 in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). Generally, the period of consideration begins one year prior to the claim for increase and extends to the present. In the case of initial ratings, the period for consideration begins with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's lumbosacral spine disability is evaluated under 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine. See September 2020 VA Rating Decision Codesheet. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. See 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine. In addition, a 20 percent evaluation is assigned under DC 5243 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine. Factual Background The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the entire body of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Analysis Repetitive, active and passive, weight-bearing and non-weight-bearing testing was completed at the April 2018 and October 2019 VA examinations. The content of the examinations complied with the requirements of 38 C.F.R. § 21.1032(a)(1)(i). See June 2018 and October 2019 VA Back (Spine) Conditions examination reports. To the extent that the VA Compensation and Pension examinations and other physical examinations discussed herein failed to record passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual's ability to produce motion at a joint (active range of motion). CYNTHIA NORKIN & D. JOYCE WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran's thoracolumbar spine is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to record limitation of motion on passive range of motion and in non-weight-bearing is harmless error and not prejudicial to the Veteran. In addition to the April 2018 and October 2019 VA examination reports, the Board will evaluate the Veteran's range of motion using the available measurements on active range of motion using the July 2011 VA examination report. Under 38 C.F.R. § 4.7, the Veteran is entitled to the benefit of the rating criteria that will result in the higher evaluation of his disability. The Veteran does not have a history of incapacitating episodes, so the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, is not an applicable rating option in this instance. Prior to his initial rating, the Veteran reported "pain...back, hips, and feet. See July 2011 VA General Medical examination report. The Veteran does not meet the minimum evaluation criteria for a compensable rating under any of the potentially applicable diagnostic codes under 38 C.F.R. § 4.71a prior to October 4, 2012. In the alternative, he was provided with the "minimum compensable rating for the joint," as prescribed by 38 C.F.R. § 4.59, "Painful motion." See October 2011 VA Rating Decision Narrative. Regarding an increased rating prior to October 4, 2012, contemporaneous medical evidence has greater probative value than the Veteran's reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The contemporaneous medical evidence shows that the Veteran: 1) had physical therapy, chiropractic treatment, and steroid injections that "[h]elped decrease need for pain meds (See March 2011 Report of Medical Assessment);" 2) had "[n]o previous hospitalizations...no previous emergency room visit[s]" and "Normal" balance, gait, and stance (See March 2011 Chronological Record of Medical Care); 3) could "walk without limitation (See July 2011 VA General Medical examination report);" 4) "gets worse after activities like mowing lawn, washing cars (See July 2011 VA General Medical examination report);" and 5) "functional impairment(s): At worst, unable to reach feet to dry off or tie shoes, difficulty standing, walking, and bending for an extended period of time (See July 2011 VA General Medical examination report)." An evaluation higher than the minimum compensable rating is not appropriate under any range of motion criteria, unless the painful motion causes a functional loss, defined in 38 C.F.R. § 4.40 as, "the inability, due to damage or infection in 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; see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011) ("pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss."). The regulation cites "absence of part, or all, of the necessary bones, joints and muscles, or associated structures," which did not result from the Veteran's steroid injections, medial branch block, or radiofrequency ablation procedures. Next, the regulation mentions "deformity, adhesions, defective innervation, or other pathology." Medial branch block and radiofrequency ablation treatments were not necessitated by defective innervation but by the need to decrease pain and to increase function. See March 2011 Report of Medical Assessment and December 2012 Sentara Interventional Pain Management Specialists Procedure Note. Also mentioned in 38 C.F.R. § 4.40 is "pain...evidenced by the visible behavior of the claimant." There is no evidence of "wincing" by the Veteran at any treatment appointment or VA medical examination. See March 2011 Chronological Record of Medical Care, March 2011 Report of Medical Assessment, July 2011 Quest Diagnostics Complete Lumbosacral Spine X-ray, July 2011 VA General Medical examination report, and December 2012 Sentara Interventional Pain Management Specialists Procedure Note. Finally, "weakness" and "atrophy" are mentioned as "evidence of disuse." Balance, gait, and stance were recorded as "Normal" in March 2011. See March 2011 Chronological Record of Medical Care. Muscle strength was reported at the July 2011 VA examination as "normal." Also, the Veteran denied "weakness" and endorsed the ability to "walk without limitation," denying the use of assistive devices, in July 2011. Inspection of the spine in July 2011 revealed normal head position, with symmetry in appearance, and symmetry of spinal motion with normal curves of the spine. See July 2011 VA General Medical examination report. There was no evidence of atrophy at the July 2011 VA examination or in treatment. See March 2011 Chronological Record of Medical Care, March 2011 Report of Medical Assessment, July 2011 Quest Diagnostics Complete Lumbosacral Spine X-ray, and July 2011 VA Back (Spine) Conditions examination report ("normal" muscle tone and musculature and "no atrophy present"). Moreover, the Veteran expressly denied limitation of "joint function" due to "pain, fatigue, weakness, lack of endurance[,] or incoordination after repetitive use" at the July 2011 VA examination. See July 2011 VA General Medical examination report. The Board acknowledges the Veteran's July 2011 statements regarding the inability to dry his feet, tie his shoes, or to endure prolonged standing, walking, and bending during flare-ups. The Board also acknowledges the Veteran's July 2011 denial of fatigue, weakness, and incapacitation, notwithstanding a report of flare-ups. Finally, the Board acknowledges the Veteran's report of day-to-day symptoms in July 2011 including "stiffness" and "decreased motion." See July 2011 VA General Medical examination report. The CAVC has held, "[I]t must be clear, from either the examiner's statements or the Board decision, that the examiner has considered 'all procurable and assembled data' by obtaining all tests and records that might reasonably illuminate the medical analysis." See Jones v. Shinseki, 23 Vet. App. 382 (2010) (quoting Daves v. Nicholson, 21 Vet. App. 46 (2007)). VA has a duty to assist the Veteran by providing a medical examination, but the duty to assist does not require a VA examiner to render an opinion "beyond what may reasonably be concluded from the procurable medical evidence." See Jones, supra. According to 38 U.S.C. § 5107(a), "a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary." See 38 U.S.C. § 5107(a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009) (interpreting section 5107 and stating that the duty to assist requires VA to bear the "primary responsibility of obtaining the evidence it reasonably (emphasis added) can to substantiate a veteran's claim for benefits."). While the July 2011 examining physician did not estimate any potential loss of range of motion during Veteran flare-ups, the basis for not doing so is apparent in the Board's view of the evidence. In July 2011, the Veteran denied functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use, which, by definition, would include activities described by the Veteran as "mowing lawn, washing cars." In denying functional loss due to repeated use over time, the Veteran did not specifically except the activities of "mowing lawn, washing cars." As noted previously, the Veteran endorsed walking "without limitation" at the July 2011 examination. The Board notes that "mowing lawn," as used by the Veteran in describing flare-up triggers, involves walking. In July 2011, the Veteran also reported regular symptoms of "stiffness" and "decreased motion" before recording a full range of motion on forward flexion. See July 2011 VA General Medical examination report. The Board is not required to provide multiple VA medical examinations to the point it decides that no further examinations would assist the veteran. See Roberts v. West, 13 Vet. App. 185, 189 (1999). It would be inappropriate to demand from a VA medical examiner to draw a conclusion as to any potential loss of range of motion due to flare-ups, based on the reasonably illuminated facts presented at the July 2011 examination. The Veteran's interest is better served by a prompt resolution of his claim rather than by further remands to address an issue, raised by the Veteran years later, which, according to the medical evidence, may be irrelevant to the final outcome of his claim. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). While he still described "muscle tightness" at private treatment in July 2015, the Veteran reported being able to complete "activities of daily living, including...bathing...dressing," despite his complaint of "worsening pain [since] December 2014." See July 2015 Sentara Interventional Pain Management Specialists Progress Note. In addition, the Veteran did not meet the evaluation criteria for a 20 percent rating under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, until the April 2018 VA examination. While he demonstrated forward flexion as 40 degrees in April 2018, the Veteran denied additional loss of range of motion due to flare-ups and with repeated use over time. See April 2018 VA Back (Spine) Conditions examination report. As the CAVC has noted, the assessment in determining the need for a VA examination is inherent in a finding that the duty to assist has been fulfilled. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Board so finds and notes that the July 2011 examining physician obtained all procurable medical evidence and did all that reasonably should have been done to become informed about the Veteran's disability in declining to offer an opinion on any potential loss of range of motion during flare-ups. See Jones, supra; see also Skoczen, supra. The Board also finds that the July 2011 VA examination was an accurate and fully descriptive medical analysis of the limitation of activity imposed by the Veteran's disabling condition. See 38 C.F.R. § 4.1. When the disability is viewed in relation to its history, the Veteran is not entitled to an evaluation greater than the "minimum compensable rating" of 10 percent for intervertebral disc syndrome prior to October 4, 2012. Regarding an increased rating from October 4, 2012, to November 7, 2018, 38 C.F.R. § 3.400(o)(2) states: "Increases...Disability Compensation. Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established." See 38 C.F.R. § 3.400(o)(2). There is no medical evidence in the record, to include "report of examination, hospitalization, or medical treatment," of: "Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine" prior to the October 2019 VA examination. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. At the October 2019 examination, functional loss with repeated use over time due to pain was estimated in loss of range of motion as 30 degrees forward flexion. See October 2019 VA Back (Spine) Conditions examination report. The Veteran denied functional loss due to flare-ups and repeated use over time at the April 2018 VA examination, where forward flexion was recorded as 40 degrees, which corresponds to the criteria in a 20 percent evaluation under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. See April 2018 VA Back (Spine) Conditions examination report. As mentioned previously, the Veteran denied incapacitating episodes, preventing application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a. See March 2011 Chronological Record of Medical Care, July 2011 VA General Medical examination report, and April 2018 and October 2019 VA Back (Spine) Conditions examination report. The July 2020 Board Decision granted an increased evaluation for the Veteran's intervertebral disc syndrome to 40 percent disabling, effective November 8, 2018, based on an appellate brief submitted by the Veteran's representative. However, an appellate brief is not a medical record, report of examination, hospitalization, or medical treatment, as described in 38 C.F.R. § 3.400(o)(2). See 38 C.F.R. § 3.400(o)(2). The Board notes that the Veteran expressed agreement with the September 2018 VA correspondence granting an increase in his service-connected intervertebral disc syndrome to 20 percent disabling, effective April 23, 2018. See September 2018 VA Form 27-0820, Report of General Information ("[H]e disagrees with the effective date for his Radiculopathy...this is the only issue from the 9/17/18 decision that he disagrees with."). However, the Board is bound by the favorable finding granting an increase to 40 percent disabling, effective November 8, 2018, and will not disturb the favorable findings of a VA adjudicator. See 38 C.F.R. §§ 3.103, 3.104. Finally, the Veteran reported: 1) "stabbing pain (See August 2017 VA Back (Spine) Conditions examination report);" 2) "ROM [] limited by pain in the knee (See August 2017 VA Back (Spine) Conditions examination report);" and 3) "shooting back pain (See October 2019 VA Back (Spine) Conditions examination report)." The Board notes that the Veteran is in receipt of separate evaluations for left and right lower extremity radiculopathy associated with intervertebral disc syndrome, right knee meniscal tear and degenerative arthritis, and left knee tendonitis / tendinosis. See September 2020 VA Rating Decision Codesheet. Assuming arguendo that the Veteran met the criteria for an increased rating under 38 C.F.R. § 4.71a prior to and between October 4, 2012, and November 7, 2018, the prohibition against pyramiding of claims prevents compensation for the same manifestation of symptoms, i.e., radiating pain, paresthesia, numbness, and associated limitation of range of motion, under multiple diagnostic codes in either 38 C.F.R. § 4.124a or § 4.71a. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 206 (1993) (holding that 38 U.S.C. § 1155 means, "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity."). Application of the regular rating schedule standards is not impractical due to an "exceptional or unusual" disability. Aside from "caudal ESI (See March 2011 Chronological Record of Medical Care)" and "Flouro-guided medial branch blocks (facet nerve blocks) (See December 2012 Sentara Interventional Pain Management Specialists Procedure Note)," the record does not contain evidence of "frequent periods of hospitalization" or "marked interference with employment (See July 2015 Sentara Interventional Pain Management Specialists Progress Note, 'Limitations at work: none.')" due to the Veteran's thoracolumbar spine disability. Because it is not reasonably raised from the record or from the appeal, referral for extraschedular consideration under 38 C.F.R. § 3.321 is not warranted. See 38 C.F.R. § 3.321(b)(1). Conclusion In summary, a clear preponderance of the evidence of record indicates the Veteran does not meet the relevant diagnostic criteria under 38 C.F.R. § 4.71a for entitlement to a compensable rating prior to October 4, 2012. In the alternative, the Veteran was provided with the "minimum compensable rating" for his pain under 38 C.F.R. § 4.59, Painful motion. Despite the lack of an estimation of any loss of range of motion due to flare-ups at the July 2011 VA examination, the Board has found that the evidence was accurate and descriptive enough to determine that the Veteran did not experience any functional loss prior to October 4, 2012, to necessitate an evaluation greater than 10 percent for intervertebral disc syndrome. Further, a clear preponderance of the evidence of record is against a finding that the Veteran is entitled to a rating greater than 20 percent disabling from October 4, 2012, to November 7, 2018. Under 38 C.F.R. § 3.400(o)(2), the receipt of medical records may be used to establish an earlier effective date for retroactive benefits. The Veteran met the criteria for a 20 percent evaluation under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for the first time at the April 2018 VA examination. The Veteran met the criteria for a 40 percent evaluation under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for the first time at the October 2019 VA examination. The Veteran did not experience incapacitating episodes to warrant consideration for evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a. The provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 have been considered. The prohibition against the pyramiding of claims prevents a separate rating for radiating pain and limitation of motion, which is already contemplated in the Veteran's schedular ratings. The Veteran's disability does not present such an exceptional or unusual picture as to render the Rating Schedule impractical. Therefore, consideration for extraschedular evaluation is not for application. The Veteran is adequately compensated for the average impairment in earning capacity resulting from diseases or injuries and their residual conditions in his full-time civilian occupation, where he works without limitations. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his low back disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the residuals of his low back disability are more severe than is reflected in the current evaluation ratings. The Board is likewise aware of the Veteran's contentions that his residuals of a low back disability impact his daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and stiffness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran provided lay evidence through non-VA treatment and VA examinations throughout the course of his appeal with respect to the presence of back-related symptoms. However, the Board assigns more weight and probative value to the contemporaneous medical evidence, including service medical records and an in-service self-evaluation, in which the Veteran demonstrated "Normal" balance, gait, and stance and a decreased need for pain medication, private treatment records, in which the Veteran denied limitations on activities of daily living and ability to work, and VA medical examinations, which provide detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations of degree of range of motion, muscle spasm, guarding, or localized tenderness severe enough to result in an abnormal gait or spinal contour, favorable ankylosis, and unfavorable ankylosis. The competent medical evidence is the most probative evidence to evaluate the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also contemplates the Veteran's descriptions of his symptoms both at VA examinations and in treatment, including his reports of functional impairment with repeated use over time due to pain. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent low back disability symptoms. The July 2011, April 2018, and October 2019 VA examination reports are the most probative evidence of record on the question of entitlement to an increased rating. The opinions were based on an extensive review of all the evidence, including lay statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and each provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the July 2011, April 2018, and October 2019 VA examiner reports are consistent with the evidence of record, including the Veteran's reported history regarding functional loss, flare-ups, and limitations at work. The VA examiner reports provide compelling evidence against the Veteran's claim for increase. There is no competent, credible evidence to refute the July 2011, April 2018, and October 2019 VA examination reports. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The weight of the probative evidence of record is against a finding that the Veteran is entitled to a rating greater than 10 percent disabling prior to October 4, 2012, and greater than 20 percent disabling from October 4, 2012, to November 7, 2018. Consequently, additional increases are not warranted, and the appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Veteran has not contended, nor does the evidence demonstrate, that this disability or his other service-connected disabilities render him unemployable. At the October 2019 VA examination, the Veteran reported a functional impact on his ability to work as limitations on sitting, standing, or walking for long periods. July 2015 private treatment noted that the Veteran was employed "full-time" and without "Limitations at work." August 2016 non-VA treatment recorded, "Patient is currently employed as a defense contractor." The issue of a total rating based on individual unemployability has not been raised at any time during this appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.