Citation Nr: 21075671 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 09-48 144 DATE: December 21, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for degenerative arthritis, degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) of the cervical spine from October 20, 2008 to October 5, 2017 is denied. Entitlement to a 30 percent rating, but no higher for degenerative arthritis, DDD and IVDS of the cervical spine from October 5, 2017 is granted. Entitlement to a 20 percent rating, but no higher, for degenerative arthritis and IVDS of the lumbar spine from October 20, 2008 is granted. Entitlement to an increased rating in excess of 40 percent for degenerative arthritis and IVDS of the lumbar spine from October 15, 2020 is denied. Entitlement to a separate 40 percent rating for right upper extremity peripheral neuropathy from July 10, 2021 is granted. FINDINGS OF FACT 1. From October 20, 2008 to October 5, 2017, the Veteran's cervical spine disability was manifested by forward flexion limited to 30 degrees without ankylosis of the cervical spine or IVDS with incapacitating episodes. 2. Resolving reasonable doubt in the Veteran's favor, from October 5, 2017, the Veteran's cervical spine disability was manifested by forward flexion limited to 15 degrees without ankylosis of the cervical spine or IVDS with incapacitating episodes. 3. From October 20, 2008, the Veteran's lumbar spine disability was manifested by forward flexion greater than 30 degrees but less than 60 degrees without evidence of ankylosis or IVDS with incapacitating episodes. 4. From October 15, 2020, the Veteran's lumbar spine disability was manifested by forward flexion limited to 30 degrees or less without evidence of ankylosis or IVDS with incapacitating episodes. 5. From July 10, 2021, the Veteran's right upper extremity peripheral neuropathy involving the lower radicular group is manifested by no more than moderate incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 20 percent for degenerative arthritis, DDD and IVDS of the cervical spine from October 20, 2008 to October 5, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to a 30 percent rating, but no higher for degenerative arthritis, DDD and IVDS of the cervical spine from October 5, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 3. The criteria for entitlement to a 20 percent rating, but no higher, for degenerative arthritis and IVDS of the lumbar spine from October 20, 2008 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 4. The criteria for entitlement to an increased rating in excess of 40 percent for degenerative arthritis and IVDS of the lumbar spine from October 15, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 5. The criteria for entitlement to a separate 40 percent rating for peripheral neuropathy involving the right lower radicular group are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from September 1997 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During this appeal, the Veteran testified before the Board in June 2012. The hearing transcript is associated with the electronic claims file. The Veteran was notified in an October 2021 letter that the Veterans Law Judge (VLJ) who conducted the hearing was no longer available and that he had a right to request an additional Board hearing within 30 days of the notice. To date, the Veteran has not responded. Consequently, the Board finds that the Veteran has waived his right to such hearing. The Board will proceed with adjudication. In August 2014, July 2016, May 2017, March 2018, June 2020 and March 2021, the Board remanded the appeal for additional development. The Board finds there has been substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination 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. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). At the outset the Board notes the Veteran filed a claim for increased rating for his service-connected back disabilities on October 20, 2008. Thus, the period on appeal begins the date of claim. 1. Entitlement to an increased rating for a cervical spine disability. The Veteran contends that he is entitled to a higher rating than what is currently reflected. The Veteran's cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. From October 20, 2008 to October 5, 2017 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a cervical spine disability based on incapacitating episodes. The Veteran did have a diagnosis IVDS however, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Here, a November 2008 VA examination report notes the Veteran was not prescribed bedrest or incapacitated in the last 12 months. VA treatment records from 2009 note the Veteran was diagnosed with IVDS with no indication of prescribed bedrest or incapacitation. Medical treatments from 2010 to 2013, fail to note the Veteran was prescribed bedrest for his IVDS. An October 2014 VA examination report reflects the Veteran did not have IVDS. An October 2016 VA examination report notes the Veteran did not have IVDS. An April 2017 VA treatment record notes the Veteran was diagnosed with IVDS but failed to indicate that the Veteran was prescribed bedrest or incapacitated as a result. At an October 2017 VA examination, it was also noted the Veteran had IVDS, but he did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The preponderance of the evidence is also against a rating in excess of 20 percent for a cervical spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to neck pain with head turning on a daily basis and significant flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had daily neck pain would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. At the November 2008 VA examination it was noted the Veteran's range of motion after three repetitions were as follows: forward flexion was limited to 30 degrees; extension was limited to 30 degrees; right and left lateral flexion was limited to 20 degrees; and right and left lateral rotation was limited to 50 degrees with pain noted throughout each movement. The examiner noted that there was no discomfort or difficulty with range of motion testing. There was no edema, effusion, deformity, fatigue, instability, tenderness, or weakness found. It was also noted that additional limitation due to flare-ups could not be determined without resorting to mere speculation as the Veteran's subjective complaints were inconsistent with the severity of the diagnosis as the Veteran gave suboptimal effort. There was no evidence of radiculopathy. A November 2009 private treatment record notes the Veteran's forward flexion was limited to 40 degrees, extension was limited to 45 degrees, left lateral flexion was limited to 35 degrees, right lateral flexion was limited to 20 degrees, left lateral rotation was limited to 70 degrees and right lateral rotation was limited to 60 degrees. Pain and tenderness were noted on all ranges of motion. The October 2014 VA examination report notes the Veteran did not report any flare-ups. On physical examination, initial range of motion testing revealed forward flexion limited to 30 degrees with objective evidence of painful motion beginning at 30 degrees. On repetitive-use testing, forward flexion was limited to 30 degrees. It was noted that pain on movement contributed to functional loss. There was no muscle atrophy, radiculopathy, ankylosis or other neurologic abnormalities of the cervical spine. The examiner further noted the Veteran did not have IVDS or used any assistive devices. The Veteran's cervical spine was noted to impact his ability to work as he reported pain with head turning. The October 2016 VA examination report notes the Veteran did not report any flare-ups but reported that he had neck pain with head turning on all sides that contributed to his functional loss or impairment. On physical examination, initial range of motion testing revealed forward flexion limited to 30 degrees. Pain was noted on all ranges of motion and caused functional loss. On repetitive-use testing, the examiner noted there was no additional loss of function or range of motion. There was no muscle atrophy, radiculopathy, ankylosis or other neurologic abnormalities of the cervical spine. The examiner further noted the Veteran did not have IVDS or used any assistive devices. The Veteran's cervical spine was noted to impact his ability to work as he reported pain with head turning on all sides. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for a cervical spine disability prior to October 5, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From October 5, 2017 The Board will resolve reasonable doubt in the Veteran's favor and find a 30 percent rating, but no higher, is warranted for the Veteran's cervical spine disability. The October 2017 VA examination report notes the Veteran did not report having flare-ups. The Veteran reported that he could not stand and cook after work, or help with the house chores, or take care of his children due to his back and neck pain. On initial physical examination, range of motion testing revealed forward flexion was limited to 20 degrees. The Veteran's range of motion was noted to contribute to his functional loss as he had difficulty doing overhead activities, and heavy lifting. Pain was noted on all ranges of motion. On repetitive use testing, the examiner noted there was no additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no muscle atrophy, radiculopathy or ankylosis. The examiner noted the Veteran had IVDS that was not accompanied by episodes of acute signs or symptoms that required bed rest prescribed by a physician in the past 12 months. The Veteran required the regular use of a cervical pillow for neck pain and his cervical spine disability impacted his ability to work as he had difficulty with overhead activities and heavy lifting. The examiner concluded that an opinion as to the degree of functional loss the Veteran's suffers during a flare-up could not be provided without resort to mere speculation, except when a flare-up occurs during examination. An October 2020 VA examination report notes the Veteran did not report having any flare-ups. The Veteran reported his cervical spine disability impacted his ability to sleep as he could not get comfortable. It impacted his ability to sit for extended periods of time, drive for long distances and activities which require looking up, down and making quick turning movements. He could not engage in activities that required physical engagements and it impacted his interaction with his children. On initial range of motion testing forward flexion was limited to 20 degrees. Pain was noted to cause functional loss. On repetitive use testing forward flexion was limited to 20 degrees. Pain, and lack of endurance significantly limited functional ability with repeated use over a period of time. The examiner noted that on repeated use over a period of time forward flexion was limited to 15 degrees. Loss of range of motion could not be described in terms of degrees with flare-ups as the Veteran denied flare-ups. The Veteran had radiculopathy involving the upper radicular group and the lower radicular group bilaterally that was noted as moderate in nature. There was no ankylosis or other neurologic abnormalities. The Veteran was noted to have IVDS that did not result in acute signs or symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The Veteran did not require the use of assistive devices. The examiner noted the Veteran's disability impacted his ability to work as it impacted his ability to sit for extended periods of time, look up and down for extended periods of time, mood, interaction with coworkers and his ability to type. A July 2021 VA examination report notes the Veteran reported having flare-ups every other day lasting 12 hours that were described as with worsening sharp pain, radiating down his right arm. Looking at a computer screen for prolonged periods, extended standing and physical activity caused his flare-ups. During a flare-up, the Veteran reported the pain was severe. It was also noted the Veteran's cervical spine pain limited his ability to stand or sit for prolonged periods of time. On initial range of motion testing forward flexion was limited to 30 degrees. Pain was noted on forward flexion, extension, right and left lateral rotation. The examiner did not indicate the degree in which limitation of motion was specifically attributable to forward flexion, extension, right and left lateral rotation. Passive range of motion testing was noted to yield the same results as active range of motion testing. There was no additional loss of function or range of motion on repetitive use testing. Pain, fatigability, weakness, lack of endurance or incoordination did not significantly limit functional ability with repeated use over time or during a flare-up. There was no muscle atrophy, or ankylosis. The Veteran had radiculopathy involving the right lower radicular group only. There was mild constant pain, moderate intermittent pain and moderate paresthesias and/or dysesthesias of the right upper extremity only. There were no other neurologic abnormalities. The Veteran was noted to have IVDS that did not result in acute signs or symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The Veteran did not require the use any of assistive devices. The examiner noted the Veteran's disability impacted his ability to work as it prevented him from working at any job that required physical activity, or prolonged standing. Here, the Board finds the evidence suggest the Veteran's cervical spine disability was manifested by forward flexion limited to 15 degrees or less. The October 2017 VA examiner noted the Veteran's reports of functional loss over a period of time but failed to consider those assertions when deciding if there was any additional loss of range of motion. The Board finds it reasonable to conclude that from the Veteran's reports of severe pain during repeated use over a period of time that he likely suffered forward flexion limited to 15 degrees or less. The Board arrives at this conclusion as the Veteran consistently reported the same functional losses due to his cervical spine disability from 2017 to the October 2020 VA examination. At the October 2020 VA examination, the examiner noted that on repeated use over a period of time forward flexion was limited to 15 degrees. As the October 2017 VA examiner failed to consider the Veteran's lay assertions, the Board will resolve reasonable doubt in the Veteran's favor and find that his cervical spine disability resulted in forward flexion limited to 15 degrees or less from October 5, 2017. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for a cervical spine disability based on incapacitating episodes. The Veteran was noted to have IVDS however, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. As noted above, the October 2017, October 2020, and July 2021 VA examination reports note the Veteran had a diagnosis of IVDS, but he was never prescribed bed rest by a physician. The preponderance of the evidence is also against a rating in excess of 30 percent for a cervical spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and lack of endurance. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had severe pain during flare-ups, with repeated use over time and during physical activities, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. Regarding neurological impairment, the Board notes that the July 2021 VA examination report shows that the Veteran has radiculopathy involving the C8/T1 nerve root (lower radicular group) along the right extremity associated with the Veteran's cervical spine disability. Paralysis of the lower radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8512. Under this criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. A 70 percent rating for the major extremity and a 60 percent rating for the minor extremity is warranted for complete paralysis, where all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers are paralyzed (substantial loss of use of hand). 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Based on the foregoing, the Board finds that the disability is primarily manifest by moderate pain and paresthesias and/or dysesthesias as noted in the July 2021 VA examination report. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by severe incomplete paralysis or complete paralysis as the Veteran was noted to work on an adjustable standing desk that he could alter and switch between sitting and standing indicating that he still had the mobility of his wrist and fingers and was able to perform his employment duties. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has a neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for his cervical spine disability from October 5, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating for a lumbar spine disability. The Veteran contends that he is entitled to a higher rating than what is currently reflected for his lumbar spine disability. The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for IVDS. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 rating is warranted 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. From October 20, 2008 to October 15, 2020 The Board finds the Veteran's lumbar spine disability manifested with forward flexion greater than 30 degrees but less than 60 degrees since October 20, 2008. Here, a May 2009 VA treatment record notes the Veteran's forward flexion was limited to 45 degrees. A June 2009 VA treatment record notes forward flexion was limited to 55 degrees. An August 2010 VA treatment record notes forward flexion was limited to 60 degrees. An October 2014 VA examination report notes forward flexion was limited to 40 degrees on initial range of motion and on repetitive use testing and painful motion began at 40 degrees. An October 2016 VA examination report notes forward flexion was limited to 45 degrees. An October 2017 VA examination report notes forward flexion was limited to 65 degrees with no additional loss of range of motion with repeated use. However, the examiner did not take into consideration the Veteran's reports of functional loss due to repeated use over time as such the Board assigns less probative value to the opinion. Based on the foregoing, the Board finds a 20 percent rating is warranted from October 20, 2008 to October 15, 2020. However, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine disability based on incapacitating episodes. During this period, the Veteran was diagnosed with IVDS however, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. VA treatment records and VA examination reports reflect the Veteran was diagnosed with IVDS but had no acute episodes requiring bed rest prescribed by a physician. The preponderance of the evidence is also against a rating in excess of 20 percent for a lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, excess fatigability, during flare-ups, and repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had daily pain and was limited in doing physical activities such as caring for his son, engaging in prolonged standing, and sitting would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A November 2008 VA examination report notes the Veteran's reports of daily pain that last all day and was worsened by lifting his son, sitting longer than two hours at work, or doing any exercise. The Veteran reported his back disability drained all his energy making it difficulty to work. On physical examination, the examiner noted there was no muscle atrophy, hypertrophy, or radiculopathy. The examiner noted after repetitive use testing, forward flexion was limited to 90 degrees with reports of discomfort throughout and limiting range of motion. As noted above, VA treatment records and VA examination reports note the Veteran's lumbar spine disability manifested by no worse than forward flexion greater than 30 degrees but less than 60 degrees throughout this period. Additionally, VA examination reports from October 2014, October 2016, and October 2017 reflect the Veteran did not have ankylosis, radiculopathy or any other neurologic abnormalities of the lumbar spine. Regarding neurological impairment, an April 2019 VA examination report reflects the Veteran's lumbar spine disability affected his bilateral sciatic nerve, musculocutaneous nerve, anterior crural nerve, and external cutaneous nerve of the thigh. The agency of original jurisdiction (AOJ) granted service connection for each affected nerve. The Board has also considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has a neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From October 15, 2020 The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for a lumbar spine disability based on incapacitating episodes. The Veteran was diagnosed with IVDS however, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Here, the October 2020 and July 2021 VA examination reports reflect the Veteran was diagnosed with IVDS however, it was noted that the Veteran IVDS did not produce any episodes of acute signs and symptoms requiring bed rest prescribed by a physician or treatment by a physician in the past 12 months. The preponderance of the evidence is also against a rating in excess of 40 percent for a lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to sharp pain, muscle spasms, numbness and tingling with repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences muscle spasms at least three to four times weekly depending on the activity with accompanying sharp pain, numbness and tingling at least two to three times a week, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Here, an October 2020 VA examination report notes the Veteran indicated having muscle spasms after prolonged sitting, walking, or standing. The Veteran reported having muscle spasms at least three to four times per week depending on the activity. These spasms would be accompanied by sharp pains in his back described as a ten out of ten (10/10) in severity. The Veteran had numbness and tingling in his lower back that radiated down his right anterior thigh that occurred two to three times weekly. The Veteran denied having flare-ups. On physical examination, forward flexion was limited to 25 degrees on initial testing and repetitive use testing. It was noted on repeated use over a period of time the Veteran's flexion was limited to 20 degrees. The Veteran continued to note that he did not experience flare-ups. The examiner noted the Veteran had signs and symptoms of radiculopathy. It was noted that the Veteran had moderate intermittent pain and paresthesias and/or dysesthesias of the bilateral lower extremities and mild numbness in the bilateral lower extremities. The bilateral femoral and sciatic nerves were noted as the affected nerves and were mild in nature. There was no muscle atrophy, ankylosis or other neurologic abnormalities noted. The Veteran required the constant use of a back brace and his lumbar spine disability impacted his ability to work as he missed one to two weeks of work in the last 12 months, it impacted his ability to sit, stand and walk for extended periods of time, and impacted his mood and interaction with coworkers. A July 2021 VA examination report notes the Veteran reported having sharp lumbar spine pain that radiated down both legs, tingling in both leges and loss of urinary control for two years. The Veteran reported having flare-ups occurring every other day and lasting 12 hours. Flare-ups were described as with sharp pain radiating down his right leg and were indicated as severe. Sitting and standing for prolonged periods and quick movements caused flare-ups. On physical examination, forward flexion was limited to 60 degrees. The examiner noted the Veteran experienced no additional loss of range of motion on repetitive use testing, with repeated use over time or during a flare-up. The Veteran had signs and symptoms of radiculopathy. It was noted that the Veteran only suffered from mild constant pain and paresthesias and/or dysesthesias and moderate intermittent pain in the right lower extremity. The examiner noted that only the sciatic nerve of the right lower extremity was affected. There was no ankylosis or other neurologic abnormalities indicated. It was further noted that the Veteran occasionally used a back brace as a normal mode of locomotion. The Veteran's lumbar spine disability impacted his ability to work as it inhibited him from working any job that required physical activity, and prolonged standing as a result the Veteran used an adjustable standing desk that he could alter and switch between sitting and standing. As previously mentioned, the AOJ granted service connection for each affected nerve indicated in the April 2019 VA examination report and the AOJ granted increased evaluations for affected nerves noted in the October 2020 VA examination report. Therefore, the Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has a neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted for this period. Regarding neurological impairment, the Veteran asserts that his loss of urinary control is related to his lumbar spine disability. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the condition to his lumbar spine disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the Veteran's statements that his loss of urinary control is related to his lumbar spine condition are not competent evidence. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for his lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.