Citation Nr: 21074306 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 07-18 122 DATE: December 14, 2021 ORDER Entitlement to a rating in excess of 20 percent for a back disability from May 29, 2003 to August 29, 2009, is denied. Entitlement to a rating in excess of 40 percent for a back disability from August 30, 2009 to July 18, 2010, is denied. Entitlement to a rating in excess of 20 percent for a back disability from July 19, 2010 to July 7, 2021, is denied. Entitlement to a rating in excess of 40 percent for a back disability from July 7, 2021, is denied. FINDINGS OF FACT 1. From May 29, 2003 to August 29, 2009, the evidence does not show severe limitation of motion of the lumbar spine, or severe lumbosacral strain that with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of the joint space or abnormal mobility on forced motion; forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine; associated neurological impairment, other than bilateral lower extremity radiculopathy; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks. 2. From August 30, 2009 to July 18, 2010, the Veteran's back disability was shown to have been functionally limited to 30 degrees or less; but unfavorable ankylosis of the entire thoracolumbar spine was not shown; there was no evidence of associated neurological impairment, other than bilateral lower extremity radiculopathy; nor was there evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. 3. From July 19, 2010 to July 7, 2021, the evidence does not show severe limitation of motion of the lumbar spine, or severe lumbosacral strain that with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of the joint space or abnormal mobility on forced motion; forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine; associated neurological impairment, other than bilateral lower extremity radiculopathy; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks. 4. From July 7, 2021, the Veteran's back disability was shown to have been functionally limited to 30 degrees or less; but unfavorable ankylosis of the entire thoracolumbar spine was not shown; there was no evidence of associated neurological impairment, other than bilateral lower extremity radiculopathy; nor incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks and/or a herniated disc with compression or irritation of the nerve root. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a back disability from May 29, 2003 to August 29, 2009, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for a rating in excess of 40 percent for a back disability from August 30, 2009 to July 18, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for a rating in excess of 20 percent from July 19, 2010 to July 7, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. 4. The criteria for a rating in excess of 40 percent for a back disability from July 7, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (effective February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from August 1994 to September 1996. In June 2007 the Veteran testified at a Travel Board hearing held at the regional office (RO). A transcript of the hearing is of record. The Veterans Law Judge (VLJ) who conducted that hearing has since retired from the Board of Veterans' Appeal (Board). In April 2012,the Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing. In reply, the Veteran indicated that he wanted another hearing. In March 2012, the Veteran testified at a hearing before the undersigned VLJ and a transcript of that hearing is of record. The appeal was remanded for additional development in January 2010, February 2012, June 2012 and April 2013. Extensive development of this case was undertaken The Board issued a decision in October 2013, which was appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2014 the Court issued a Memorandum Decision vacating those aspects of the Board's decision which did not grant additional benefits, and remanding the remaining matters on appeal for actions consistent with the Memorandum Decision. The Board in May 2015 remanded the appealed claims to the RO for additional development to address the Court's decision. Following development, the Board issued a decision in December 2015. Pursuant to a September 2016 Joint Motion for Partial Remand (JMPR 1), the Court issued an order vacating the Board's December 2015 decision and remanded the appeal to the Board for action consistent with the JMPR. The JMPR, in pertinent part, instructed the Board to address Veteran's private chiropractor's notes from 2008. In May 2017, the Board remanded the appeal to obtain the development called for in the JMPR 1. In December 2019, the Board issued another decision that granted the Veteran a 20 percent rating for his back disability from May 29, 2003 to August 29, 2009, denied a rating in excess of 40 percent for his back disability from August 30, 2009 to July 18, 2010, and denied a rating in excess of 20 percent for his back disability from July 19, 2010. The Veteran appealed the December 2019 Board decision to the Court. In an October 2020 order, which incorporated the parties Joint Motion for Remand (JMR 2), the Court vacated and remanded the Board decision to the extent that it denied a rating in excess of 20 percent for the back disability from May 29, 2003 to August 29, 2009, denied a rating in excess of 40 percent for his back disability from August 30, 2009 to July 18, 2010, and denied a rating in excess of 20 percent for his back disability from July 19, 2010, citing a basis that was not cited in JMR 1. In March 2021, the Board Remanded the appeal to obtain the development called for in the JMR 2. In correspondence on March 24, 2021, pursuant to the Board's remand directives, the agency of original jurisdiction (AOJ) requested that the Veteran and his representative identify any missing records from the Veteran's private chiropractor, including outstanding treatment records from 2008, and either submit records himself or complete authorizations for their release. Notwithstanding the extensive litigation in this case, the Veteran and his representative failed to respond. In written argument from October 2021, the representative of the Veteran made no reference to this issue. The Board emphasizes that VA's duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran has not identified any outstanding treatment records, nor has he has he authorized the release of outstanding private treatment records, if any, the Board finds that additional efforts to obtain these records, if they exist, would be futile and the AOJ has complied with the March 2021 remand directives with regard to obtaining any outstanding treatment records. Stegall v. West, 11 Vet. App. 268 (1998). Thus, VA has met the duty to assist the Veteran to obtain private treatment records. A July 2021 rating decision the granted a 40 percent disability rating for residuals compression fracture thoracic spine with retained foreign bodies, effective July 7, 2021. Because the increased rating does not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion 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) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). During the course of this appeal, the schedular criteria for evaluating the spine have been amended three during the pendency of the Veteran's appeal. First, the criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a , Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54345 -54349 (August 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2002)). Second, effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2003)). Most recently, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Prior to September 26, 2003, a 10 percent was warranted for slight limitation of motion of the lumbar spine, a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine, and a 40 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Prior to September 26, 2003, a 10 percent rating was warranted for lumbosacral strain with characteristic pain on motion. A 20 percent rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was warranted for lumbosacral strain that was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, and narrowing or irregularity of the joint space; a 40 percent rating was also warranted when only some of these symptoms are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a , Diagnostic Code 5295 (2002). Prior to September 26, 2003, Diagnostic Code 5289 provided a 40 percent rating for favorable ankylosis of the lumbar spine and a maximum 50 percent rating for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a (2002). Prior to the February 7, 2021 regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), 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, Note (6). The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Effective September 23, 2002, Diagnostic Code 5293 (later renumbered and amended as present Diagnostic Code 5243 effective September 26, 2003), was amended to provide for evaluation of IVDS on the total duration of incapacitating episodes over the last 12 months. 67 Fed. Reg. 54345-01 (August 22, 2002); 68 Fed. Reg. 51545-58 (Aug. 27, 2003); 69 Fed. Reg. 32499-01 (June 10, 2004) (correcting omission of Notes 1 and 2). Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Board also notes that the Veteran is in receipt of separate 10 percent disability ratings for radiculopathy of the lower extremities, respectively; a 10 percent disability rating for muscle group XX involving the retained foreign bodies in thoracic spine; a 10 percent disability rating for a compression fracture of the thoracic spine, and; noncompensable disability ratings for a scarring on the anterior and posterior trunk associated with residuals compression fracture thoracic spine with retained foreign bodies. These matters are not currently before the Board and will not be addressed herein. 1. Entitlement to a rating in excess of 20 percent for a back disability from May 29, 2003 to August 29, 2009 The Veteran contends that he is entitled to higher disability ratings than that currently assigned for the back. A September 2006 rating decision granted service connection for a back disability that resulted from a grenade being accidently dropped too close to the Veteran's position during a live fire drill. The grenade exploded, lodging shrapnel in the Veteran's back, several pieces of which are still embedded in his back. A compression fracture of the thoracic spine was also noted. Imaging studies of the thoracic spine in 1998 showed a fracture at T11. Treatment records in 2003, showed complaints of back pain as well as lost range of motion, weakness of his back flexors and extensors, and loss of lordosis. An MRI in February 2003, revealed disc protrusion and spondylolisthesis. In March 2003, a clinician noted flexion of the thoracolumbar spine to 70 degrees at worst. The Veteran could stand on his heels and toes. He was neurovascularly intact. In January 2004, the Veteran wrote that for the past year he had been having trouble with back spasms fatigue and sharp pain. He reported being prescribed physical therapy and some pain killers for his back. April 2006 imaging studies of the thoracic spine were negative, other than two small retained metallic foreign bodies. In June 2006, the Veteran underwent a VA examination at which the examiner noted that he had not experienced any incapacitating episodes during the previous 12 months. The Veteran also did not report any prescribed bed rest prior to this date. The examiner stated that ranges of motion were not applicable to the thoracic spine, noting objective evidence of mild spasm and tenderness along T8 to T10 and T11. VA treatment notes in September 2007 noted full range of motion of the back. Bed rest was been prescribed on a number of occasions during the course of the Veteran's appeal. In January 2008 he was seen for exacerbation of back pain with a history of disc herniation. He was treated with medication and 5 days of bed rest. On VA examination in February 2009, flexion of the thoracolumbar spine was 80 degrees. He exhibited 15 degrees of bilateral rotation, 20 degrees of bilateral lateral flexion and 30 degrees of extension. Regarding repetitive use testing, the Veteran exhibited increased pain and fatigue on the second and third attempts of his spinal range of motion with increased pain and spasms in the lower thoracic and upper lumbar vertebrae. The Veteran denied any flare-ups. He reported losing eight days of work in the previous 12 months due to back pain and spasms. The Veteran ambulated without any assistive devices. A March 2009 work record noted four days of leave secondary to back pain. A June 2009 thoracic spine MRI showed mild degenerative disease and a chronic wedge compression fracture of T11. Examination was limited due to artifact from Under the criteria in effect prior to September 26, 2003, while the evidence from May 29, 2003 to August 29, 2009, documented complaints of occasional muscle spasms and some limitation of motion, there was no evidence severe limitation of motion of the lumbar spine; or severe lumbosacral strain with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of the joint space or abnormal mobility on forced motion. Accordingly, prior to September 26, 2003, a rating greater than 10 percent was not warranted under the old Diagnostic Codes 5292 and 5295. Consequently, an initial rating in excess of 20 percent for the low back disability, under the old criteria prior to August 29, 2009, is not warranted. After September 26, 2003, to warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. From May 29, 2003 to August 29, 2009, the only recorded range of motion findings show the Veteran's flexion was noted, at worst, to 70 degrees with repetitive movement and on flare-ups pain. There is no evidence that his forward flexion of the lumbar spine was limited to 30 degrees. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis. Therefore, from May 29, 2003 to August 29, 2009, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. As to the neurological manifestations, the Veteran is currently in receipt of separate ratings for lumbar radiculopathy, which are not currently on appeal before the Board. He also did not have any other neurological abnormalities or findings related to a spine including bowel or bladder disabilities. For this reason, separate ratings for objective neurological abnormalities are not warranted from May 29, 2003 to August 29, 2009. Likewise, the Board finds that the Veteran did not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating IVDS at any time from May 29, 2003 to August 29, 2009. The Board has reached this conclusion because, while the record shows that he had a combined 12 days of physician ordered bedrest because of his back disability in 2008 and 2009 (see Temple Family Medical Associates treatment records dated in January 2008, March 2009, and July 2009; employment records dated in March 2009 and July 2009), the record did not show he ever had a total of at least 4 weeks of incapacitating episodes during any 12-month period. Therefore, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating under Diagnostic Code 5243 for IVDS from May 29, 2003 to August 29, 2009. 2. Entitlement to a rating in excess of 40 percent for a back disability from August 30, 2009 to July 18, 2010 Bed rest was documented as having been prescribed from July 9-11, 2009 and March 4-7, 2009. In November 2009, the Veteran testified at a hearing before the Board that he had lost 160 hours of work over the previous two years, and 81 hours in the current year. He estimated that he experienced 3-4 weeks of flare-ups per year lasting 1-4 days. He stated that his doctor authorized bed rest for those periods. The Veteran recalled being put on bed rest approximately twice in the past year. He stated that the longest he had been out in one stretch was four days. On his job, the Veteran stated that he stood for approximately 4-5 of the 9 hours with sitting mixed in. On February 20, 2010, Dr. G. prescribed bed rest for 5 days. In March 2010, both passive and active ranges of motion of the thoracic and lumbar regions of the spine were found to be moderately decreased with pain and spasm. Later in March 2010, both active and passive range of motion in the thoracic and lumbar spinal regions remained moderately restricted with pain and spasm. At a third session that same month, passive and active ranges of motion of the lumbar spine remained mildly restricted, with pain and spasm; but active and passive ranges of motion of the thoracic region of the spine continued to be very restricted with pain and spasm. Similar findings were made in April 2010. In May 2010, active and passive ranges of motion of the thoracic and lumbar spinal regions were still found to be decreased, but only to a slight degree with pain and spasm, although the Veteran still reported pain at 9/10. In July 2010, the Veteran underwent a VA examination at which he reported missing work approximately 4 times a year for 3-4 days at a time when he required bed rest. The Veteran reported daily muscle spasms and daily back pain that was worsening. Flare ups and incapacitating episodes occurred without any provoking. His flare ups were better after he rested in bed for 3 to 4 days. Flexion of the thoracolumbar spine was 50 degrees. There was no additional loss of motion with repetitive movement. There was moderate tenderness to palpation on examination with mild spasm of the paraspinal muscles, There was no weakness and there was normal neural examination. The condition moderately impacted his activities of daily living and occupation. With respect to the period prior to September 26, 2003, from August 30, 2009 to July 18, 2010, the Veteran is in receipt of the highest schedular rating under 38 C.F.R. § 4.71a, Diagnostic Code 5292 and Diagnostic Code 5295 (2002). A higher 50 percent rating under Diagnostic Code 5289 would require unfavorable ankylosis of the lumbar spine, which was not shown. Consequently, from August 30, 2009 to July 18, 2010, a disability rating higher than 40 percent for the low back disability, under the old criteria is not warranted. In order to warrant a rating higher than 40 percent for the back disability under the General Rating Formula, the evidence must show unfavorable ankylosis of the thoracolumbar spine. As the evidence shows that from August 30, 2009 to July 18, 2010, the Veteran had movement in the thoracolumbar spine, it follows that the thoracolumbar spine was not ankylosed. Therefore, the Board finds that the criterion for the next higher rating based on limitation of motion and orthopedic manifestations under the General Rating Formula has not been shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. As to the neurological manifestations, the Veteran did not have any other neurological abnormalities or findings related to the thoracolumbar spine including bowel or bladder disabilities. Therefore, separate ratings for objective neurological abnormalities are not warranted from August 30, 2009 to July 18, 2010. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 40 percent for his back disability under the Formula for Rating IVDS at any time from August 30, 2009 to July 18, 2010. The Board has reached this conclusion because, while the record shows that he had 5 days of physician ordered bedrest because of his back disability in February 2010, and with consideration of the Veteran's November 2009 testimony where he estimated that he experienced 3-4 weeks of flare-ups per year, the record did not show he had a total of at least 6 weeks of incapacitating episodes during any 12-month period. Therefore, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating under Diagnostic Code 5243 for IVDS from August 30, 2009 to July 18, 2010. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. Entitlement to a rating in excess of 20 percent for a back disability from July 19, 2010 to July 7, 2021 In January 2011, bed rest was prescribed for 3 days, and it noted that the Veteran had been under doctor's care from January 14-25 and was able to return to work/school on January 26, 2011. In April 2011, the Veteran wrote a letter in which he did not dispute the findings of the VA examination in terms of limitation of motion found. He acknowledged that he had been able to demonstrate forward flexion to 70 degrees after sitting in the waiting room for an hour and he agreed with the examiner's assessment that his back condition moderately affected his activities of daily and employment and that his condition was worsening. However, he felt that these findings did not adequately convey the impact that his disability had had on someone who had been active enough to enlist as an airborne soldier. The Veteran argued that his flexion would be reduced to less than 30 percent after standing to watch his kids at their baseball game for 30 minutes and he could not get loosened up until a good hour after waking up and taking 2-3 Tylenol 3s. He reported working the third shift, so he did not take out his frustration and anger out on his family because his back hurt in the morning. The Veteran suggested that if he had stood up for 30 minutes in that waiting room before my medical evaluation his forward flexion would have been closer to 15 degrees. At his second Board hearing in March 2012, the Veteran testified that around 2005, he experienced approximately 3 to 4 incapacitating episodes of back pain per year forcing him out of work approximately 10 to 15 times a year (exceeding his sick leave allowance). At a VA examination in July 2012, the examiner noted mild tenderness to palpation in the lower thoracic spine extending into the lumbar spine. There was no palpable paravertebral lumbar muscle spasm. Forward flexion was to 50 degrees. After repetitive use testing, forward flexion was decreased to 35 degrees due to pain. After repetitive use testing, several of the ranges of motion were further decreased because of pain, not because of fatigue, weakness, lack of endurance, or any other identifiable factor. The Veteran was able to perform his occupational responsibilities as a machinist. In terms of activities of daily living, he stated that he avoided lifting more than 20 pounds as it would cause increased flare ups and he also avoided wrestling with his children. He was prescribed bed rest in February 2011 for 2 days. On VA examination in July 2015, the examiner noted the Veteran had IVDS with lumbosacral strain and degenerative joint disease. The Veteran reported getting fatigued very easily and limitations on standing. He was treated with oral analgesics, chiropractic, trigger point injections, rest, limited activities, lidocaine patches. The Veteran denied any flare-ups. Flexion of the thoracolumbar spine was 70 degrees, with no additional loss of function or range of motion after three repetitions. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There were muscle spasms of the thoracolumbar spine that did not resulting in abnormal gait or abnormal spinal contour. Other than radiculopathy, no other neurological abnormalities were noted. There was no ankylosis. The Veteran denied physician prescribed bedrest in the previous 12 months. He required a lumbar support brace used for back his condition. He remained employed as a machinist with difficulty performing usual tasks including lifting, carrying, bending, pushing and pulling. Private treatment records in 2016 documented forward flexion of the thoracolumbar spine to 35 degrees. On VA examination in June 2017, the examiner noted the Veteran had compression fracture thoracic spine with shrapnel wounds, IVDS with degenerative joint disease. The Veteran reported getting fatigued very easily and limitations on standing. He was treated with oral analgesics, chiropractic, trigger point injections, rest, limited activities and lidocaine patches. The Veteran denied any flare-ups. Flexion of the thoracolumbar spine was 70 degrees, with no additional loss of function or range of motion after three repetitions. There was no evidence that pain, weakness, fatiguability or incoordination causing limitation of function during flare-ups, following repeated use over time, or with passive and active use. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There were muscle spasms of the thoracolumbar spine that did not result in abnormal gait or abnormal spinal contour. Other than radiculopathy, no other neurological abnormalities were noted. There was no ankylosis. The Veteran denied physician prescribed bedrest in the previous 12 months. He required regular use of a brace to reduce back pain. He remained employed as a machinist. Under the criteria in effect prior to September 26, 2003, while the evidence from May 29, 2003 to August 29, 2009, there was no evidence severe limitation of motion of the lumbar spine; or severe lumbosacral strain that with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of the joint space or abnormal mobility on forced motion. Accordingly, prior to September 26, 2003, a rating greater than 10 percent was not warranted under the old Diagnostic Codes 5292 and 5295. Consequently, a rating in excess of 20 percent for the low back disability, under the old criteria from July 19, 2010 to July 7, 2021, is not warranted. After September 26, 2003, to warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. From July 19, 2010 to July 7, 2021, because at its worst flexion of the thoracolumbar spine was 50 degrees at the July 2010 VA examination, 35 degrees at the July 2012 VA examination, 70 degrees at the July 2015 VA examination, 35 degrees in the February 2016 and March 2016 treatment records from Audubon Back Aid Center, and 70 degrees at the June 2017 VA examination; not the 30 degrees or less required for an increased rating at any time from July 19, 2010. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Moreover, the Veteran denied having flare-ups at both the July 2015 and June 2017 VA examinations. Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis. Therefore, from July 19, 2010 to July 7, 2021, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Board also notes that the treatment records do not document flexion being 30 degrees or less, and finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (Board may not make independent medical assessments); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Additionally, other than the separately rated bilateral radiculopathies, no other neurological abnormalities or findings related to a lumbar spine including bowel or bladder disabilities, were noted. Therefore, separate ratings for objective neurological abnormalities are not warranted from July 19, 2010 to July 7, 2021. The Board also finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating IVDS at any time from July 19, 2010 to July 7, 2021, despite the July 2012 VA examiner noting that the appellant's history included bedrest in 2009 and 2011, and the record shows that he had 6 days of physician ordered bedrest because of his back disability in January 2011 (see Temple Family Medical Associates treatment record dated in January 2011). The Board has reached this conclusion because not only do the Veteran's treatment records not show that his back disability causes incapacitating episodes having a total duration of at least 4 weeks during any 12-month period during this time-period but the July 2012 and the July 2015 VA examiners both opined that he had not required bedrest in the last 12-months. In conclusion, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating under Diagnostic Code 5243 for IVDS from July 19, 2010 to July 7, 2021. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board once again finds that the Veteran as a lay person is not competent to provide this medical finding because he does not have the required training. See Davidson, supra; Colvin, supra. 4. Entitlement to a rating in excess of 40 percent for a back disability from July 7, 2021 On VA examination in July 2021, the examiner noted degenerative arthritis, degenerative disc disease, IVDS, lumbosacral strain and residuals of a compression fracture thoracic spine with retained foreign bodies. The examiner noted a history of mild compression fracture T11, seen on x-ray, following an injury in 1995. The Veteran had an MRI of the lumbar spine in 2003 that showed degenerative disc disease, bilateral spondylolysis and moderate size disc protrusion creating a central can stenosis. A 2009 MRI revealed minimal multilevel lumbar spondylosis. Incidentally, there were several metallic fragments in the pelvic soft tissues that caused limitations in function. On examination, the Veteran reported pain rated at 5/10 with constant throbbing discomfort. He indicated that the pain was cyclical in nature, aggravated by standing. He endorsed daily flare-ups lasting approximately 30 minutes, with two to three episodes of flare-ups in the past year where the back pain became incapacitating and required bed rest. The Veteran also described spams rated as 10/10 in severity. Treatment included medication, a heated pad, trigger point injections and physical therapy. He continued to be under chiropractic treatment. The Veteran reported that he was not able to stand more than 10 minutes due to pain in the back. He described an inability to walk for more than 15 minutes at a time due to pain in the back, and discomfort with prolonged sitting and driving. He reported being cautious when changing positions and being guarded in all motions of the back. Passive and active range of motion showed flexion of the thoracolumbar spine was 45 degrees, extension to 0 degrees, right and left lateral flexion and rotation was to 10 degrees, respectively, with repetitive use over time. During flare-ups, range of motion of the spine was to 5 degrees in all directions. There was no evidence of pain with weight bearing, non-weight bearing, passive and active range of motion. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue and crepitus. There was guarding and muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. Other than radiculopathy, no other neurological abnormalities were noted. There was no ankylosis. There was IVDS with episodes of bed rest having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months. The Veteran required no assistive devices. He remained employed as manufacturing supervisor. Reportedly, he lost one to two weeks of work in the previous 12 months due to his back condition. With respect to the period prior to September 26, 2003, from July 7, 2021, as the Veteran is in receipt of the highest schedular rating under 38 C.F.R. § 4.71a , limitation of the motion of the lumbar spine, and as he has not been diagnosed with ankylosis of the lumbar spine, a disability rating higher than 40 percent is not warranted. Diagnostic Codes 5292, 5295, 5289 (2002). In order to warrant a rating higher than 40 percent for the back disability under the General Rating Formula, the evidence must show unfavorable ankylosis of the thoracolumbar spine. As the evidence shows that from July 7, 2021, the Veteran had movement in the thoracolumbar spine, and the July 2021 VA examiner specifically found no evidence of ankylosis, it follows that the thoracolumbar spine was not ankylosed. Therefore, the Board finds that the criterion for the next higher rating based on limitation of motion and orthopedic manifestations under the General Rating Formula has not been shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Additionally, the Veteran did not have any neurological abnormalities or findings related to the thoracolumbar spine, other than lower extremity radiculopathy. Therefore, separate ratings for additional objective neurological abnormalities are not warranted from July 7, 2021. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 40 percent for his back disability under the Formula for Rating IVDS at any time from July 7, 2021, as the record did not show he had a total of at least 6 weeks of incapacitating episodes during any 12-month period, and/or a herniated disc with compression or irritation of the nerve root. Thus, considering both the pre- and post-February 7, 2021 Diagnostic Code 5243, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating under Diagnostic Code 5243 for IVDS from July 7, 2021. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the record shows that the Veteran lost time from work because of his service-connected back disability. However, the record is uniform in showing that the Veteran remains working full-time. See VA examinations dated in July 2015 and July 2021; VA treatment records through September 2021. Moreover, the Board finds that the combined disability ratings in effect throughout the appeal; 60% from May 29, 2003; 70% from August 30, 2009; 60% from July 19, 2010; 70% from July 2, 2015, and; and 80% from July 7, 2021, already assigned his service-connected disabilities contemplates the fact that service-connected disabilities would cause claimants to lose time from work. Therefore, the Board finds that the record does not raise a claim for a total rating based on individual unemployability (TDIU) despite the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). It is important for the Veteran to understand that nothing above should be interpretive as a finding that the Veteran does not have a back problem. The Veteran clearly has a back problem. The only question in this case is degree of the problem based on the medical evidence, some of which the Veteran did not help us get, and the criteria, which changed during the appeal (including caselaw from the Court), nothing else. In this regard, it is also important for the Veteran to understand that not all evidence in this case fully supports the current evaluations of the back, let alone higher evaluations. Finally, even it we did get more records from the private chiropractor from years ago, it is important to note that this condition has undergone extensive evaluations over many years, that these evaluations are entitled to great probative value, and that they outweigh any findings from the chiropractor. The Board has remanded this case many times and the Veteran has undergone many highly detailed and though examinations. The Board finds that another remand, leading to another delay in this case, would be unconscionable considering the evidence of record. The record clearly indicates that Board has fully addressed the concerns raised in the JMRs and the Court memorandum decision. The Board apologies for the delays in the full adjudication in this case. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claims to the extent outline above, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.