Citation Nr: 21073356 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 13-36 371 DATE: December 8, 2021 ORDER A rating higher than 20 percent prior to April 21, 2020, and higher than 40 percent since that date, for lumbar intervertebral disc syndrome, arthritis, herniated disc, and spondylosis (low back disability) is denied. FINDINGS OF FACT 1. Prior to April 21, 2020, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; by ankylosis; or by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least four weeks but less than six weeks during a 12-month period. 2. Since April 21, 2020, the Veteran's low back disability has not been manifested by unfavorable ankylosis of the thoracolumbar spine, or by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least six weeks during a 12-month period. CONCLUSION OF LAW The criteria for a rating higher than 20 percent prior to April 21, 2020, and higher than 40 percent since that date, for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1978 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board remanded the matter in June 2015 and November 2017. It denied a higher rating for the Veteran's low back disability in an October 2019 decision. That decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in a November 2020 decision of the Court. The Court remanded the matter for further proceedings consistent with its decision. In July 2021, the Board remanded the matter for further development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2014. A transcript of the hearing is of record. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Low Back Disability For the following reasons, the Board finds that the criteria for higher ratings for the Veteran's service-connected low back disability have not been met. A. Rating Criteria The rating schedule provides for the evaluation of all disabilities of the spine under the 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 (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the agency of original jurisdiction for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). These changes will be discussed further below. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise; thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 85 Fed. Reg. 76453. Under the General Rating Formula, evaluations of disabilities of the thoracolumbar spine are assigned as follows: A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. Id. The General Rating Formula applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Id., Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); Plate V. The normal combined range of motion is 240 degrees. Id. Unfavorable ankylosis is 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., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Disabilities of the thoracolumbar and cervical spine segments are evaluated separately, except when there is unfavorable ankylosis of both segments, which is rated as a single disability. Id., Note (6). Under DC 5243, IVDS may be evaluated under the General Rating Formula, as set forth above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 10 percent rating is assigned if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is assigned if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is assigned if the total duration is at least six weeks. Id. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. Id., Note (1). Effective February 7, 2021, the revised schedule provides that the criteria for rating IVDS under DC 5243 apply only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). Diagnostic Code 5242, which pertains to degenerative arthritis and degenerative disc disease other than IVDS, is to be assigned for all other disc diagnoses. No changes were made to the criteria for rating IVDS. A "non-substantive edit[]" was also made to DC 5242 clarifying that it applies to degenerative arthritis and degenerative disc disease other than IVDS. Id. at 76459, 76462. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These considerations 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 v. Brown, 8 Vet. App. 202, 206-07 (1995). B. Analysis Preliminarily, the Board notes that the Veteran underwent lumbar spine surgery in March 2010. From March 16, 2010 through July 31, 2010, a temporary total rating was in effect for his low back disability due to surgery necessitating convalescence. See 38 C.F.R. § 4.30. Accordingly, the Board will not address evidence pertaining to his low back disability dated during that period. Indeed, a May 2010 VA examination report reflects that range-of-motion testing of his thoracolumbar spine was not conducted due to the recency of his back surgery. An August 2010 VA primary care treatment record reflects that the Veteran had low back pain. It was a constant ache. "Nothing [made] it better." He was taking gabapentin and ropinirole to help with restless legs. An August 2010 VA neurosurgery treatment record reflects that the Veteran reported he initially did well after his March 2010 surgery. His bilateral radicular pains had resolved and his ambulation tolerance had increased. However, approximately four months earlier he started having pain in his bilateral feet. He denied radicular symptoms. He was advised to take a low dose of amitriptyline (Elavil) in addition to gabapentin. An August 2010 addendum to this record states that the Veteran was taking Neurontin with respect to his diabetes and peripheral neuropathy. The October 2010 VA examination report reflects that the Veteran reported progressively worsening back pain. He had a constant bilateral paralumbar back ache which was exacerbated by trunk range of motion, prolonged standing, and walking. Under the heading "Description of Treatment(s)," the examiner listed the following medications: amitriptyline, gabapentin, and acetaminophen. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 55 degrees, with objective evidence of pain. There was no additional loss of range of motion on repetitive testing. Regarding functional impairment, the examiner found that the Veteran's low back disability caused increased problems with lifting and carrying, decreased mobility, difficulty reaching, and pain. A December 2010 VA treatment record reflects that the Veteran was taking four tables of extra strength Tylenol three times per day. The VA treatment records reflect that in March 2012, the Veteran reported persistent back pain. He was taking gabapentin and Ultram. The amitriptyline had been discontinued in the past. The plan was to gradually taper him off gabapentin and start Lyrica (pregabalin). In April 2012, an epidural steroid injection of the lumbar spine was performed. In July 2012, the Veteran reported three to four months of relief after the last injection. Another steroid injection was performed. A record dated several days later reflects that the Veteran reported that the injections were helping him substantially and enabling him to exercise more frequently and for a longer period of time. He stated he felt so good that he ran three miles. He had also started on Lyrica, which provided a moderate therapeutic benefit. Overall, he was doing quite well and felt encouraged. A November 2012 VA treatment record reflects that the Veteran took Ibuprofen without side effects. The Neurontin had been ineffective. He was off the Lyrica due to lack of benefit. A December 2012 record reflects that he told the pain clinic that the Lyrica was not helping. The Veteran received additional lumbar spine injections in November 2012, June 2013, September 2013, and October 2013. The October 2013 VA examination report reflects that the Veteran related having partial relief of pain from his March 2010 spine surgery. He was now getting injections, which provided temporary partial improvement. On range-of-motion testing, the Veteran's forward flexion of the thoracolumbar spine was to 90 degrees, including after repetitive testing. Pain on movement was noted. He endorsed flare-ups, stating that he believed flexion would be limited to 40 degrees during a flare-up. The VA treatment records show that the Veteran received lumbar spine injections in February 2014, May 2014, June 2014, and September 2014. A June 2015 record reflects that the Veteran complained of lower back pain. He had stopped all medication including Neurontin, Depakote, and tramadol, and had not noticed any difference. He also had not received further back injections, stating that the relief was lasting for shorter periods. The October 2015 VA examination report reflects that on range-of-motion testing, the Veteran's forward flexion of the thoracolumbar spine was to 90 degrees, including after repetitive testing. He exhibited pain with weightbearing and mild tenderness of the low back. There was no additional loss in range of motion on repetitive testing. He endorsed flare-ups. However, the examiner stated that determining the range of motion of the spine during flare-ups was "inherently speculative," and thus declined to provide an estimate. The examiner found that the Veteran had IVDS, but that it did not require any bed rest or treatment by a physician in the last twelve months. The examiner found that the Veteran did not have ankylosis. The VA treatment records reflect that in March 2016 and October 2016 the Veteran received epidural steroid injections to the lumbar spine. The June 2018 VA examination report reflects that the Veteran experienced constant pain in his low back. Regarding functional impairment, he stated he bends with great difficulty. He could not lift his leg up to tie his shoe or put on his sock. He could bend down to lift under twenty pounds, but did so slowly and deliberately. He had undergone spinal injections in the past, but their "efficacy had stopped." He reported flare-ups characterized by an increase in pain. Initial range of motion testing showed forward flexion to 90 degrees. There was no additional loss in range of motion after repetitive testing. The examination was not conducted during a flare-up. In a non-weightbearing position, the Veteran's flexion of the spine was to 90 degrees. Passive range of motion testing was not performed due to concerns about injury to the Veteran's back. The examiner estimated that during a flare-up, the Veteran's forward flexion would continue to be to 90 degrees, but he would have reduced range of extension, lateral flexion, and lateral rotation, with a combined range of motion of 120 degrees, as opposed to the 215 degrees measured on testing on the day of the examination. The examiner also found that the Veteran had IVDS, but that he did not have any episodes requiring bed rest prescribed by a physician or treatment by a physician in the preceding twelve months. The March 2020 VA examination report reflects that the Veteran's March 2010 surgery helped with his gait, but the pain remained. He had undergone spinal injections with limited effect. His pain was gradually getting worse and leading to decreased mobility. His current symptoms were constant lumbar back pain and radiculopathy. Current treatment included a Lidocaine topical patch used as needed ("PRN") and Lyrica every morning and evening. He endorsed flare-ups, which he stated occurred several times per week. They were moderate in severity. They lasted several minutes at a time. Regarding functional impairment, the Veteran stated he was unable to pick up anything from the floor without squatting down. He could not skate, ski, or run. He also could not drive for extended periods of time. On examination, forward flexion of the spine was to 60 degrees. The Veteran exhibited pain on flexion. On repetitive testing, there was no additional loss of motion. The examiner estimated that with repetitive use over time and during flare-ups, forward flexion would be further limited to 50 degrees due to pain. Passive range of motion was not performed as it was not feasible to do so in a safe manner, according to the examiner. Non-weightbearing range of motion was not tested as it was "not applicable." The examiner found that the Veteran did not have ankylosis. The examiner found that the Veteran had IVDS, but that he did not have any episodes requiring bed rest prescribed by a physician or treatment by a physician in the past twelve months. A July 2020 VA treatment record reflects that the Veteran was seen in the neurology clinic for low back pain radiating down both legs. It improved with movement and use of a TENS unit. Since his March 2010 lumbar spine surgery, walking had been manageable and he walked on his treadmill daily. He also had prickling pain in his feet which was felt to be caused by his diabetic peripheral neuropathy. Gabapentin was used to control these symptoms. It was noted that the Veteran had stopped taking prescription medications due to perceived ineffectiveness. He continued to take Ibuprofen. He had not had a lumbar spine injection in over a year as the relief provided by the injections was lasting for shorter periods of time. A TENS unit provided short-term relief to "take his mind off" the pain. He occasionally used topical medicationLidocainebut felt such medication stayed on the surface and did not get to the root of his pain. He wanted to avoid medications as much as possible. The September 2020 VA examination report reflects that the Veteran had constant pain in his back. He endorsed flare-ups. He described these as feeling like there was fire in his back. Sometimes it went down his legs and he lost all strength in his legs. He fell twice during a flare-up. He stated that the usually the flare-ups were "quick," but at other times lasted one to two minutes. Regarding functional impairment, he stated that he could not drive long distances. He could not run, skate, ski, or play hockey. He could not lift objects greater than twenty pounds. He stated that putting his socks on was a challenge as he could not raise his legs. He had to pull up his foot, and it took him a long time to tie his shoes. On range-of-motion, the examiner recorded the Veteran's forward flexion of the thoracolumbar spine to 20 degrees. There was no additional loss of motion on repetitive testing. Visible grimacing was noted with forward flexion. He was unable to bend and touch his toes. During the examination, the Veteran was observed having difficulty untying his shoes and removing and putting on socks. He used a hand to raise each leg. He was unable to bend forward in a sitting position. The examiner indicated that the Veteran was not being examined after repeated use over time or during a flare-up. The examiner estimated that the Veteran would have forward flexion to 20 degrees during flare-ups. The examiner found that the Veteran did not have ankylosis. The July 2021 VA examination report reflects that the Veteran had lower back pain down into his legs. He was unable to sit for long periods. Flare-ups of back pain occurred almost daily, and were moderate to severe. They lasted a few seconds to several minutes. They were precipitated by daily activity, sitting, walking, and sleeping. They were alleviated by laying down, which helped but not all the time. His treatments included past surgery (in March 2010) and Lyrica. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 50 degrees, with pain. Passive range of motion was not tested as it was medically contraindicated. The Veteran was unable to perform repetitive use testing, as pain was triggered with active range of motion. The examiner estimated that during flare-ups or with repeated use of the spine over a period of time, flexion would be further limited to 45 degrees. In a September 2021 addendum to the July 2021 examination, the examiner stated that it was less likely than not that the Veteran's medications affected range of motion of the thoracolumbar spine. The examiner explained that the Veteran has been diagnosed with degenerative arthritis of the spine and IVDS. The degenerative arthritis would be the condition "more involved with [range-of-motion] changes than IVDS." The Veteran took Lyrica to treat his nerve pain, which would be used to treat the symptoms of IVDS more than the symptoms of degenerative arthritis. The Board finds that for the period prior to April 21, 2020, the criteria for a rating higher than 20 percent have not been met. The criteria for a rating higher than 20 percent under the General Rating Formula require forward flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis (favorable or unfavorable). During that period, the VA examination reports consistently show that the Veteran's forward flexion exceeded 30 degrees, including on repetitive use testing. The March 2020 examiner estimated that with repetitive use over time and during flare-ups, forward flexion would be further limited to 50 degrees due to pain. As the Veteran's low back symptoms were more or less just as severe, if not more severe, at the time of that examination as at the time of the earlier examinations, it follows that an estimate of limitation of flexion during flare-ups or with repeated use over time when those earlier examinations were conducted would not show limitation of flexion to 30 degrees or less. Thus, consideration of functional loss of the thoracolumbar spine due to factors such as pain, including during flare-ups or with repeated use over time, does not alter the conclusion that forward flexion would continue to exceed 30 degrees. The Court remanded this matter, in part, because the Board's October 2019 decision had not considered the ameliorative effects of medication the Veteran has taken for his back disability. More specifically, the Board must disregard the ameliorative effects of medication in evaluating the severity of a disability, unless the applicable rating criteria specifically contemplate such effects. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) (holding that a higher rating may not be denied on the basis of relief provided by medication when the ameliorative effects are not specifically contemplated by the rating criteria); but see McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016) (holding that the plain language in DC 7101, which applies to hypertension, contemplated the ameliorative effects of blood pressure medication). The General Rating Formula does not contemplate the ameliorative effects of medication. Nevertheless, the Board finds that the record does not show that the effects of medication alter the conclusion that the Veteran's forward flexion of the spine has been in excess of 30 degrees. The VA treatment records show that his medications were prescribed or administered (in the case of the epidural steroid injections) to control pain, including pain in his legs. There is no indication that they affected range of motion. Moreover, and significantly, during the course of the claim several VA examinations have been conducted when the Veteran was not benefiting from the ameliorative effects of medication that would improve range of motion of the thoracolumbar spine. More specifically, the June 2015 record reflects that he complained of lower back, but had stopped all medication including Neurontin, Depakote, and tramadol, and had not noticed any difference. He also had not received further back injections, stating that the relief was lasting for shorter periods. The records show that his last injection at that time had been administered in September 2014. Thus, he is not shown to have been benefitting from the effects of medication when the October 2015 examination was performed. At that examination, his forward flexion of the thoracolumbar spine was to 90 degrees, including after repetitive testing. The record also does not show that the Veteran was actively benefiting from medications or prior injections (his last being in 2016) when the June 2018 VA examination was performed, which shows flexion greater than 30 degrees. Similarly, at the time of the March 2020 examination, the Veteran had not received a lumbar spine injection in several years. His only treatment at that time consisted of using a Lidocaine topical patch as needed, and Lyrica every morning and evening. According to the examiner's finding in the September 2021 addendum, Lyrica would not affect the Veteran's range of motion of the spine. There is no indication that he was using the Lidocaine patch on the day the examination was performed. The record also shows that the Veteran has used a TENS unit, but this provided only short-term relief, according to the Veteran, and is not shown to have benefitted him during the examinations. Indeed, a January 2021 VA treatment record reflects that he stated that the TENS unit helps "while it is on." Thus, his use of a TENS unit did not provide amelioration of his symptoms at the time the examinations were performed, since he was not using one while they were conducted. Thus, the record does not show that the Veteran's medications affected his range of motion at the time of the March 2020 examination. In sum, when the ameliorative effects of medication are disregarded, it does not alter the conclusion that the Veteran's forward flexion of the thoracolumbar spine consistently exceeded 30 degrees. Apart from limitation of forward flexion, a rating higher than 20 percent under the General Rating Formula may be assigned for favorable or unfavorable ankylosis. The VA examiners found that the Veteran did not have ankylosis. The record does not show otherwise. Rather, he retained considerable range of motion of the thoracolumbar spine in all planes (extension, left and right rotation, and left and right lateral flexion), including based on estimates of limitation of motion during flare-ups or with repeated use over time. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (defining ankylosis). Accordingly, the criteria for a rating higher than 20 percent under the General Rating Formula were not met at any time during the period prior to April 21, 2020. See 38 C.F.R. § 4.71a. As the Veteran's IVDS of the thoracolumbar spine was not manifested by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least four weeks during a 12-month period, the criteria for a rating higher than 20 percent under the Formula for Rating IVDS have also not been met for the period prior to April 21, 2020. 38 C.F.R. § 4.71a, DC 5243. A 40-percent rating has been assigned for the Veteran's low back disability effective April 21, 2020 based on the findings in the September 2020 VA examination report. See October 2020 Rating Decision. The effective date assigned by the agency of original jurisdiction was based on the processing of a new claim, with an Intent to File determined to have been submitted on that date, notwithstanding the present appeal. See id. The evidence does not show an ascertainable increase in the Veteran's lumbar spine disability supporting assignment of a 40 percent rating prior to that date. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Indeed, the March 2020 VA examination report shows that the criteria for a higher rating were not met at that time, as explained above. The record does not show that the Veteran's low back disability has been manifested by favorable or unfavorable ankylosis since April 21, 2020. The Board notes that the requirement of establishing ankylosis under the General Rating Formula for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). In this regard, "ankylosis is, in essence, a complete limitation of motion." Id. at 10. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. The 40 percent rating already contemplates favorable ankylosis. The record shows that the Veteran has not had the functional equivalent of unfavorable ankylosis, as defined in Note (5) to the General Rating Formula, since he has not had any of the manifestations by which unfavorable ankylosis is defined. For the reasons discussed above, disregarding the ameliorative effects of medication does not alter the conclusion that the Veteran's low back disability has not been manifested by unfavorable ankylosis. There is no indication that but for the ameliorative effects of medication, the Veteran would have unfavorable ankylosis of the thoracolumbar spine. As explained by the July 2021 VA examiner in the September 2021 addendum, the Veteran's medications did not have an effect on his range of motion of the spine. Accordingly, the criteria for a rating higher than 40 percent under the General Rating Formula have not been met since April 21, 2020. See 38 C.F.R. § 4.71a. As the Veteran's IVDS of the thoracolumbar spine has not been manifested by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least six weeks during a 12-month period, the criteria for a rating higher than 40 percent under the Formula for Rating IVDS have not been met for the period since April 21, 2020. 38 C.F.R. § 4.71a, DC 5243. The amendments to DC's 5243 and 5242, which went into effect on February 7, 2021, do not include substantive changes to the rating criteria, as discussed above. See 85 Fed. Reg. 76462. Thus, they do not alter the Board's evaluation of the Veteran's low back disability for the period since the effective date of the amendments. Because the preponderance of the evidence is against higher ratings for the Veteran's low back disability, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.