Citation Nr: 21074182 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-19 193A DATE: December 14, 2021 ORDER Entitlement to increases in the staged (40 percent prior to August 1, 2013, 20 percent from August 1, 2013, to January 25, 2021; and 40 percent from January 25, 2021) ratings assigned for the Veteran's low back disability is denied. FINDINGS OF FACT 1. Prior to August 1, 2013 and from January 25, 2021, the Veteran's low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of disc disease (IVDS); separately ratable neurological manifestations other than bilateral lower extremity sciatic radiculopathy are not shown). 2. From August 1, 2013 to January 25, 2021 low back disability is not shown to have been manifested by flexion limited to 30 degrees or less, or ankylosis, and incapacitating episodes of IVDS have not been shown; separately ratable neurological manifestations other than bilateral lower extremity sciatic radiculopathy are not shown. CONCLUSION OF LAW Ratings for the Veteran's low back disability in excess of 40 percent prior to August 1, 2013; in excess of 20 percent from August 1, 2013 to January 25, 2021; and in excess of 40 percent from January 25, 2021 are not warranted. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from February 1982 to March 1984, and additional Army National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 Department of Veterans Affairs (VA) rating decision (that in pertinent part continued a 20 percent rating for the low back disability. In December 2018, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. [At the hearing (upon noting that the evaluation period in a claim for increase begins one year prior to the date of the claim for increase, the undersigned acknowledged that the evaluation period in the matter began prior to August 1, 2013 (when the back was rate 40 percent); notably, the Veteran had not filed a NOD with the May 2013 rating decision that implemented a reduction in the rating for the disability.] In April 2019 and November 2020, this matter was remanded for further development [for VA and private treatment records and for examinations.] [The November 2020 Board decision also denied entitlement to service connection for a psychiatric ability and for a postoperative inguinal hernia. In March 2021, the Veteran's attorney filed a request for reconsideration of the November 2020 Board decision. June 2021 Board correspondence notified the Veteran and his attorney that the Board does not have jurisdiction to rule on a motion for reconsideration as the appellant had filed filing a Notice of Appeal with the U.S. Court of Appeals for Veterans Claims (CAVC), and the matter was pending before the CAVC.] An interim (February 2021) rating decision increased the rating for the Veteran's low back disability to 40 percent, effective January 25, 2021. Increased Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. , Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to ROM where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, (as is the case with the low back and left lower extremity radiculopathy claims) the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating spine disabilities are found in Codes 5235 to 5243. A spine disability which includes disc pathology may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or based on Incapacitating Episodes of Disc Disease (IVDS), whichever is more favorable. Under the General Formula, the following ratings apply to disabilities of the thoracolumbar spine: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. And a 100 percent rating is assigned ed for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. See Note (1) following the General Formula. 38 C.F.R. § 4.71A. Under the Formula for Rating IVDS Based on Incapacitating Episodes, the following ratings apply: A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. An "incapacitating episode" is defined as "a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Code 5243, Note (1). Entitlement to increases in the staged (40 percent prior to August 1, 2013, 20 percent from August 1, 2013 to January 25, 2021, and 40 percent from January 25, 2021) ratings assigned for a low back disability is denied. A January 2011 VA vocational rehabilitation and employment (VR&E) program record notes that the Veteran graduated from training in September 2010, but elected to only pursue part-time employment to maintain his Social Security Disability (SSD) compensation. The VR&E note indicates that they introduced the Veteran to a catering service that is suitable for his interests, abilities, and aptitude. A November 2010 followup phone call confirmed that the Veteran was employed at the catering business. A December 2011 VA 21-8940 (Application for Increased Compensation Based on Unemployability) submitted by the Veteran notes that he last worked (as a banquet server) from 2004 to 2008. A November 2012 VA treatment record entry by the Veteran's primary care provider notes that the Veteran reported lower back pain [rated] 7-8/10. He reported radiation to the right lower extremity on and off with no weakness of the extremities, or bladder, or bowel dysfunction. The provider noted that the Veteran failed to appear for a January 2012 evaluation for low back pain with radiculopathy, and that the Veteran reported he received a manual wheelchair, but elected to use a cane instead as the manual wheelchair was too hard to use. A January 2013 VA treatment record notes the Veteran's reports to a neurosurgeon that he has worsening pain all the time. He related that pain prevents him from walking sometimes, there is pain when he moves, and in the morning before he moves, and that he has to take pain medication to enable movement. He denied prior surgical intervention and stated that his maximum pain is more than ten if he does not take pain medication. He described numbness in his back, right leg including toes, and his left leg. The provider noted the Veteran did not undergo an EMG. On January 2013 (spine) examination, the Veteran reported persistent, increasingly intense lumbar spine pain pattern which requires noninvasive pain management with medication. An abnormal gait and abnormal spinal contour was noted. He related that he ambulates short distances with a cane and uses a wheelchair for longer distances and when out. He reported flareups as from positional changes and stated weight-bearing increases the pain pattern. Objective ROM testing showed forward flexion to 50 degrees with pain reported at 40, extension to 20 degrees with pain reported at 20, right lateral flexion to 25 degrees with pain reported at 25, left lateral flexion to 20 degrees with pain reported at 20, and bilateral rotation to 30 degrees, each. Repetitive use testing did not result in additional loss of ROM, weakness, fatigability, or lack of endurance. The examiner described the Veteran's functional loss as less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and or weightbearing. Deep tendon reflexes were hypoactive; sensory exam revealed normal sensation apart from a report of decreased sensation of the right toes, which the examiner noted was not a radicular finding. Radiculopathy pain was not reported by the Veteran. The diagnosis was degenerative disc disease (DDD) of the lumbosacral spine. The Veteran reported his use of assistive devices included regular use of a wheelchair, constant use of a back brace, and regular use of a cane. The examiner noted that the Veteran's pattern of DDD and mobility issues make physically active or demanding employment impossible, but sedentary work situations without lumbar spinal areas strain may prove possible. In a September 2013 Statement in Support of Claim, the Veteran reported numbness in his legs and knees. A September 2013 VA treatment record notes the Veteran related to his psychiatrist that he is independent, planned to participate in vocational rehabilitation to develop technology skills, and stated that he uses a wheelchair due to pain. The provider expressed concerns regarding the Veteran's ongoing illicit drug use. The provider noted that the Veteran was viewed cheerfully interacting with other veterans in the waiting area, walking without a cane and showing no acute distress. The provider noted the Veteran's homicidal, suicidal, and manipulative thoughts. The provider noted that during the interview the Veteran gave contradictory information on several occasions and his manipulative thoughts could be a reason for such presentation. The provider noted his ongoing substance abuse use, lack of empathy, and belief that it is okay to kill others if he is going to die as a concern. The provider determined that an inpatient admission is not viable unless he periodically entertains homicidal thoughts and there is no FDA approved medication to treat his issues. The provider noted the Veteran's reports of his medications helping him contrasted with his chronic history of non-compliance with medications, and observed that the medications will be ineffective if he continued to use illicit drugs. A January 2014 VA treatment record notes the Veteran's reports to his social worker that he hurt his back, cannot do much, and requires Trazodone to sleep. He related that his plans are to complete college and work from home in a computer- related job. He also reported an upcoming court date related to getting into a fight with a security officer at his apartment. The social worker noted the Veteran's lack of discomfort as to harming others but could not recommend involuntary admission due to his long history of reporting chronic suicidal thoughts or thoughts of aggression. The Veteran inquired regarding a competency letter that would allow him to manage his own financial affairs. The social worker indicated that she offered to provide a competency letter if he complied with his treatment plan, and noted that the Veteran responded by requesting a new mental health provider and refusing to provide a monthly urinary sample to test for drugs. On March 2014 VA (spine) examination, it was noted that one of the Veteran's psychiatric diagnoses affects the reliability of his history, and ROMs recorded. The provider distinguished the Veteran's ROMs found on examination as disproportionate in comparison to the MRI findings. He denied flareups and reported regular use of a cane, but was noted to have a normal gait. Objective ROM testing showed forward flexion to 70 degrees, extension to 5 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 10 degrees, each. Painful motion was noted at the endpoint of each motion. The examiner explained that repetitive use testing was not done due to the Veteran's psychiatric disability preventing reliable responses. The Veteran reported tenderness in the paraspinal muscles with palpation. Bilateral hip, knee, ankle, and great toe strength testing was interpreted as active movement against some resistance. Deep tendon reflexes were hypoactive; sensory exam revealed normal sensation apart from a report of decreased sensation of the bilateral toes, which the examiner noted was not a radicular finding. The examiner noted that straight leg testing could not be performed, and that radiculopathy or neurologic abnormalities were not noted. No ankylosis was noted. The diagnosis was degenerative arthritis of the spine. The Veteran reported use of assistive devices described as regular use of a cane. The examiner noted that the back disability did not impact the Veteran's ability to work and "the Veteran is long term unemployed with follow up by the psychiatry service." In May 2014, the Veteran submitted an affidavit from his home care attendant who stated that she prepares seven meals for him, launders his clothes, transports him, and does his grocery shopping, and his housekeeping. Since starting in April 2014, she reported that the Veteran paid her $1,398.00 for her services. A July 2014 VA treatment record notes a psychiatrist's diagnosis of malingering, antisocial personality disorder with behavioral dysregulation, cocaine abuse/dependence, and cannabis abuse. The psychiatrist noted documents and affidavits provided by a nonprofit institution that housed the Veteran were reviewed. The psychiatrist noted that the Veteran had threatened to burn down his apartment building with gasoline to kill the nonprofit staff and himself. He reported that his back pain is treated with tramadol and that he had no recent falls. A July 2014 VA treatment record notes the Veteran's complaints of low back pain that radiates down his legs. On July 2015 VA (competency) examination, the examiner diagnosed antisocial personality disorder, and noted the Veteran's report that he severely beat a man in front his house for calling him a slur. The Veteran reported he last worked ten years ago as a driver and caterer, and that he stopped due to having to deal with people and lifting. He reported that after the military his longest job (as a security worker) lasted three years, and that he mainly stays in his apartment for fear that he will hurt someone again. On July 2015 VA (spine) examination, the examiner noted a 1983 diagnosis of degenerative arthritis of the spine. The Veteran stated that his back had worsened since the last examination. He related that hi disability rating was reduced and that he wanted it restored. He reported chronic ongoing daily low back pain that radiates down his left lower extremity to his foot, pain worsened by movement, and denied prior back surgeries. He did not report flareups, and described his functional loss as inability to stand/walk for any significant time, or distance, and inability to lift/carry objects. The provider noted that ROM testing could not be conducted as the Veteran would not place weight on his left heel for fear of losing balance. He also refused to make any attempt at flexion, extension, lateral bending, or rotation. The provider noted that the Veteran would not attempt repetitive use testing, did not have guarding or muscle spasm of the thoracolumbar spine, and had no additional factors that contribute to his disability. Right hip flexion, right knee extension, right ankle flexion, right ankle dorsiflexion, and right great toe extension were interpreted as active movement against some resistance on muscle testing, and left hip flexion, left knee extension, left ankle flexion, left ankle dorsiflexion, and left great toe extension were interpreted as active movement with gravity elimination. Deep tendon reflexes were normal; sensory testing for right upper anterior thigh, right thigh/knee, right lower leg/ankle, and right foot/toes were interpreted as normal and left upper anterior thigh, left thigh/knee, left lower leg/ankle, and left foot/toes were interpreted as decreased. There was no ankylosis; IVDS was diagnosed, but had not required bed rest prescribed by a physician in the past twelve months. The Veteran reported regular use of a wheelchair, constant use of a brace, and constant use of a cane. The provider described functional impact as avoiding lifting, carrying, and climbing. The examiner noted great difficulty performing the examination as the Veteran walked with an exaggerated antalgic gait, leaning heavily upon a cane held in the right hand, and only bearing weight upon the left toes with the left knee flex. The examiner noted a markedly positive Waddell testing for increased pain upon en bloc rotation attempt even though the Veteran did not rotate at all and upon axial loading. The examiner noted that the Veteran's effort on strength testing was lacking, and that ROM testing, and sensory testing on examination was not a valid reflection of his function. A September 2016 VA treatment record notes the Veteran's reports to a doctor that he bas numbness in both upper extremities, and the doctor's opinion that the most likely diagnosis is peripheral neuropathy of an undetermined origin that may be diabetes. The doctor noted that he did not believe bilateral upper extremity neuropathy is explained by compression neuropathy. An August 2016 VA treatment record note by the Veteran's primary care provider indicates that he reported back pain that radiates to his feet and numbness in his hands and that he uses a back brace. The primary care provider noted a podiatry report that his left foot pain is likely due to his back arthritis and pinched nerve. The Veteran stated that the pain in the area of his surgical hernia repair is related to his pushing a table in a fight at a party on the prior day. At a December 2018 Board hearing, the Veteran's attorney argued that the July 2015 examiner noted the Veteran's abnormal gait, use of a walker and cane for ambulation, and argued these facts show an increased rating is merited for the Veteran's low back disability. The attorney argued that SSA records show that a combination of the Veteran's physical and mental impairments prevents him from securing employment. The Veteran testified that he treats his back disability with multiple pain pills, numerous back braces, a wheelchair, a cane, and suffers sleepless nights. He testified that he "got prayed out of that one [wheelchair]" and is now using a cane. He described his medications as gabapentin, cyclobenzaprine, ibuprofen, and naproxen. He described the side effects of his low back disability as irritability due to lack of sleep attributed to pain, and frustration and anger. He Veteran described back pain running down his hips, legs, and to his toes. He that he walks everywhere in his apartment with a cane. He indicated that he cannot bend without suffering pain and that his pain pills put him to sleep, which makes cooking impossible. He testified that staying in bed for prolonged periods was prescribed to treat his back and that he wears multiple back braces to keep his back straight. An April 2019 VA treatment record notes the Veteran's psychiatrist's concerns regarding his unsteady gait which the Veteran attributed to back and knee pain. On November 2019 VA (spine) examination, the Veteran reported low back pain as 10 out of 10 regularly, and described flareups as lasting the whole day. He reported that he was having a flareup on the day of the examination, with reported as 10 on a scale of 10. He described his functional loss as difficulty walking, or standing for a prolonged period, inability to run, difficulty climbing stairs, and difficulty bending to lift. He reported occasional use of a wheelchair, constant use of a cane, and regular use of a brace. Objective ROM testing showed forward flexion to 40 degrees, extension to 25 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 25 degrees, each. The examiner noted that ROM for forward flexion, extension, and bilateral flexion are limited due to pain. The examiner noted tenderness at midline and paraspinal area at the right. The examiner explained that repetitive use testing was not done, as the Veteran felt it would cause increased pain on that day and more pain over the next several days. The examiner indicated that the Veteran has pain, weakness, lack of endurance, and incoordination with repeated use-over-time and flareups. The examiner reported inability to quantify the pain in terms of ROM, but described it as more pain aggravating the condition with repetitive usage over time. The provider noted additional contributing factors of disability described as instability of station, disturbance of locomotion, and interference with standing. Bilateral hip, knee, ankle, and great toe strength testing were interpreted as normal strength. Deep tendon reflexes were hypoactive; sensory exam revealed normal sensation apart from a report of decreased sensation of the bilateral leg/ankle and foot/toes, which the examiner noted were a radicular finding. The Veteran described mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner indicated involvement of the bilateral sciatic nerve with bilateral moderate radiculopathy. The provider noted that the Veteran has IVDS of the thoracolumbar spine and found no descriptions of episodes of acute signs/symptoms of IVDS that would be treated with prescribed bed rest by a physician. The diagnosis was degenerative arthritis of the spine. The Veteran reported his use of assistive devices as constant use of a cane, regular use of a brace, and occasional use of a wheelchair. The examiner noted functional impairment as that prolonged walking and standing would be problematic. The provider conducted Correia testing and noted pain and paresthesias radiating to the distal of the bilateral lower extremities, pain with weight-bearing, and that passive ROM of the back was not medically appropriate/cannot be performed. A February 2020 VA treatment record notes the Veteran's report to his social worker that he enjoys bowling and riding his bike. He also reported he had extreme pain. The social worker noted depressive symptoms that are improving with detox from alcohol/cocaine and resumption of antidepressant medication. A May 2020 VA treatment record notes the Veteran's report of being struck by a car while riding his bike. He reported he flipped over the hood of the vehicle and lost consciousness for a period, and that he originally refused to go to a hospital, but after arriving home his body began to ache, so he visited the ER the next morning. A July 2020 VA treatment record notes the Veteran's report of being struck by a car while riding his bike to a nearby grocery store. He reported that he got back on his bike and finished riding to the grocery store. He reported pain in his epigastric region, ribcage, and mid-back. The provider noted the Veteran's regular use of marijuana and a positive urinalysis for cocaine. The examiner diagnosed a rib contusion and compression fractures at T6, 8, 10, and 12. A July 2020 VA treatment record note by a psychiatrist reports that the Veteran is an inconsistent and unreliable historian. The psychiatrist noted that when he approached the Veteran regarding discharging him from the hospital he began to wince and grimace to sustain the hospitalization due to a medical appointment scheduled for the next day. On January 2021 VA (spine) examination, the Veteran reported constant back tightness and stiffness in his lower lumbar area, constant numbness in his legs down to his toes, worsening symptoms with weather, difficulty traveling, and difficulty sleeping due to back pain. indicated that he presently uses a cane and back brace, and previously had used a wheelchair. He described functional impairment as he avoids steps if possible as he must crawl down to descend, requires home health care as he cannot bend and pick things up, cannot clean his house or dishes, and showers slowly as he does not have grab bars. The diagnoses were degenerative spine arthritis and IVDS. The examiner noted the Veteran's reports of stabbing, severe lower lumbar pain on ROM testing. Objective ROM testing showed forward flexion to 30 degrees, extension to 5 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 5 degrees, each. The examiner noted that ROM for forward flexion, extension, bilateral flexion, and bilateral rotation are limited due to pain. The examiner explained that repetitive use testing was not done due to "fear of pain." The examiner did not conduct repeated use over time testing, but opined that the functional loss for repeated use over time was pain, fatigue, and weakness could be quantified as forward flexion to 10 degrees, extension to 0 degrees, bilateral flexion to 5 degrees, and bilateral rotation to 5 degrees. The examiner noted that the examination was not conducted during a flareup, but that a flareup could be quantified as forward flexion to 10 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 5 degrees, and bilateral rotation to 5 degrees. The provider noted guarding described as producing an abnormal gait or abnormal spinal contour. Additional contributing factors of disability described as instability of station, disturbance of locomotion, interference with sitting, interference with standing, and weakened movement due to muscle or peripheral nerves injury. Bilateral hip and knee testing was interpreted as of normal strength, and ankle and great toe testing was interpreted as active movement against some resistance. Deep tendon reflexes were hypoactive; sensory exam revealed normal sensation apart from a report of decreased sensation of the bilateral leg/ankle and foot/toes, which the examiner noted was a radicular finding. The Veteran described moderate constant pain, denied intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner noted bilateral sciatic nerve involvement with bilateral moderate radiculopathy. The provider indicated that the Veteran has thoracolumbar spine IVDS, but found no descriptions of episodes of acute signs/symptoms of IVDS that would be treated with bedrest prescribed by a physician. Ankylosis of the spine was not found. The Veteran reported use of assistive devices as constant use of a cane and brace, and occasional use of a wheelchair. The examiner noted functional impairment as that the Veteran is retired, and lost 0 to 1 week of work time in the past twelve months; is unable to bend and lift anything, is very unsteady getting down and getting back up with a cane and can only walk a short distance due to unsteadiness, ambulates with a cane at home, push/pulling causes back pain with side load, and he is unsteady standing in the shower. He reported he tore the shower curtain on multiple occasions. The examiner also noted that the Veteran does not stand to do dishes as he tends to fall to ae side, cannot do household chores, and is unable to sit due to increasing back pain. The examiner noted that the Veteran's bilateral lower extremity radiculopathy causes him to stumble and unsteadiness. The provider conducted Correia testing and noted objective pain on non-weight bearing. The examiner noted that passive ROM is not feasible in a safe manner and an opposing joint cannot be tested for the spine. In a July 2021 VA Form 21-8940, the Veteran stated that his service affected him mentally and physically. He indicated that he last worked full time on October 15, 1994, and that he has not worked, to include in self-employment, for the past five years. A September 2021 VA treatment record notes the Veteran's reports to a social worker of doing odd jobs with his truck for supplemental income. A nurse noted that the Veteran has no mobility limitations, steady gait, ais ble to stand and step without staff assistance, walks frequently, and is able to change/control his body position. A nurse noted that the Veteran ambulated off the ward without any difficulty. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400 (o)(2). The Veteran filed the instant claim for increase on September 6, 2013 [based on review of the record, it appears the original rating agency interpreted the September 6, 2013 statement in support of claim's report of bilateral lower extremity leg numbness as a request for increase for the Veteran's low back disability.] Consequently, the evaluation period would begin September 6, 2012, one year prior; however, here a May 2013 rating decision based on evidence then of record reduced the rating to 20 percent effective August 1, 2013, and as that rating decision was unappealed and new and material evidence pertaining to the period prior to May 2013 was not received within a year following, the rating for the period prior to May 2013 is not subject to revision unless CUE (here not alleged)n that decision is found. The Veteran's low back disability is now rated 40 percent prior to August 1, 2013, 20 percent from August 1, 2013, and 40 percent from January 25, 2021. Separately compensable neurological manifestations, with the exception of the already service-connected (and separately rated) bilateral lower extremity radiculopathy [rated at 10% and 20%, effective September 6, 2013], not at issue herein, are not shown. Accordingly, further separate ratings for neurological manifestations are not warranted. The bilateral radiculopathies were assigned to the date of claim. [A September 2016 VA treatment record indicates that the Veteran's upper extremity peripheral neuropathy was attributed to his diabetes and is not a compression neuropathy related to the low back disability.] The Veteran is a layperson, and does not profess to have medical expertise; therefore, his own opinion regarding any other radiculopathy neurological manifestations is not probative evidence in the mater the matter (as the etiology of neurological manifestations is a medical question). See Jandreau, 492 F.3d at 1372. Notably, the determination of the appropriate rating for the Veteran's service-connected low back disability has been complicated by various treating providers' findings that he is a reliable historian, and observations that outside of the examination room his functioning was shown considerably improved over what was noted on examination (an example of this is his ability to ride a bicycle to the extent he was involved in a motor vehicle accident while suggesting that in essence he has been wheelchair-bound). Furthermore, more complete evaluations have been inhibited by his lack of co-operation (as noted by the March 2014 examiner, and in his refusal to conduct repetitive use testing at the March 2014, July 2015, November 2019, and January 2021 VA examinations.) [The Veteran participated in repetitive use testing on January 2013 examination, but no additional ROM loss due to repetitive use was found.] He refused to participate in ROM testing on the July 2015 examination and the examiner noted that the results of the examination were not a valid reflection of his actual function [the July 2015 examiner also noted the Veteran's lack of effort on testing and an exaggerated antalgic gait]. The Veteran had five opportunities to undergo more complete VA examinations for his low back disability during the pendency of his claim, and he was warned of the ramifications of failing to put forth full effort on the most recent VA examination in the last [November 2020] remand. See 38 C.F.R. § 3.655(b). [As any deficiencies in these examinations are attributable to the Veteran's failure to co-operate, the Board finds there has been substantial compliance with the prior Board remand directives in this matter.] At the Board hearing the Veteran testified that he has experienced incapacitating episodes of IVDS. On (July 2015, November 2019, January 2021) VA examinations, it was noted that while he has IVDS, there was no evidence of incapacitating episodes. On January 2013 and March 2014 VA examinations, it was noted that he does not have IVDS. If there is IVDS, it may alternatively be rated under the Formula for Rating IVDS based on incapacitating episodes (Code 5243). This Code was revised on February 7, 2021. However, the record does not reflect that alternative rating based on IVDS is warranted under either the old or new version of Code 5243 as no objective evidence of incapacitating episodes of IVDS and, the Board finds that the Veteran's report of such episodes are not credible. What remains for consideration is entitlement to increase in the ratings for the low back disability under the General Formula criteria. 38 C.F.R. § 4.71A. While the March 2014 VA (spine) examination did not occur during all the respective periods on appeal, the Board finds the consulting provider's opinion that the Veteran's psychiatric diagnoses affect the reliability of his reported history, and the ROMs present a caveat against the acceptance of his reports of functional impairment at face value (without some clinical confirmation) . The March 2014 consulting provider distinguished the Veteran's ROMs recorded on examination as disproportionate in comparison to the MRI findings, citing to numerous notations in the medical records during the period on appeal that the Veteran can ambulate without a cane or wheelchair, ride a bicycle, exhibits a normal gait, has worked various odd jobs (including more recently driving his truck), exhibits no noticeable pain, is an inconsistent/unreliable historian and endorses viciously beating other individuals (which would appear implausible if his impairment is as severe as alleged. These notations in the record conflict with the Veteran's Board testimony that he requires constant use of a cane, as well as his reports at the January 2021 VA examination that he crawls down steps and an examiner's observance that he fell against doors despite using a cane. The March 2014 opinion is corroborated by a September 2013 psychiatrist note that the Veteran gave contradictory information on several occasions and his manipulative thoughts could be a reason for such presentation. Considering the self-serving nature of the Veteran's reports to the VA examiners and testimony at the Board hearing, the Board finds that the Veteran's over exaggerated symptoms (as noted by the March 2014 provider) are not credible and lacking in probative value when contrasted with objective medical evidence of record and his own conflicting lay statements. The preponderance of the evidence is against a finding that that the Veteran's back disability was of a level contemplated by a 50 percent rating prior to August 1, 2013 or from January 25, 2021. At no point was there any evidence that his entire thoracolumbar spine was ankylosed at an unfavorable angle. While there was objective evidence of pain on range of motion, the pain is not objectively shown to rise to a level of functional loss consistent with or approximating unfavorable ankylosis of the entire thoracolumbar spine. DeLuca issues to include pain weakness, fatigability, or incoordination were considered as well as instability of station, disturbance of locomotion, interference with sitting, interference with standing, and weakened movement due to muscle or peripheral nerves injury (as noted on the January 2021 VA examination). The clinical findings of the examiners, however, do not support a higher rating as they do not show a functional equivalent of unfavorable (fixation in flexion or extension) ankylosis. Notably, the Veteran himself did not allege, or describe, a disability picture reflective of unfavorable ankylosis, even on repeated use over time or during flare-ups. Moreover, as noted above, the Board has not found even the reports he did make regarding flareups, repeated use over time, or his efforts on the examinations to be credible. The preponderance of the evidence is also against a finding that the Veteran's back disability worsened to the level of severity contemplated by a 40 percent rating during the period from August 1, 2013 to January 25, 2021. The record does not show forward flexion of the thoracolumbar spine was limited to 30 degrees or less, or that there was favorable ankylosis of the entire thoracolumbar spine. Consulting providers' assessments found forward flexion to 70 degrees (March 2014) and 40 degrees (November 2019) on active (voluntary by the Veteran) ROM testing. The record is silent for any finding of ankylosis. The Veteran has alleged having incapacitating episodes, but the consulting provider opinions of record for this period on appeal do not support his contentions. Notably, the November 2019 VA examination is followed by a February 2020 VA treatment record which notes the Veteran's reports of bowling and biking. Considering the above-discussed issues with his credibility, the Board is not able of find that his functional impairment exceeded what was found on clinical evaluation on examinations. The Veteran and his attorney contend that his claim for an increased rating for his low back disability raises a matter of entitlement to a TDIU rating. See July 2021 VA 21-8940; see also December 2018 Board Hearing. However, the record does not show that at any time his low back disability was found to be of such severity as to preclude his participation in employed that could be done primarily while seated (with allowances for optional standing). Also noteworthy is that he participated in vocational rehabilitation and employment suitable to for someone with his service-connected disabilities was found, but he declined seeking such employment (due to its likely impact on his continued receipt of disability benefits from another Federal Agency). Noting that the Veteran's attorney has not chosen to submit an application for a TDIU rating which would be needed to properly adjudicate a TDIU claim) in the 3 years since the Board hearing and has not argued for a TDIU since that hearing, as well as the wide inconsistency in the record regarding the extent to which the Veteran working and was still working driving his truck, the Board finds that the Veteran is not actually pursuing a TDIU rating, and that entitlement to a TDIU rating is not otherwise sufficiently raised by the record to the extent that remand of the matter to the AOJ for appropriate action is warranted. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.