Citation Nr: 21005489 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-16 883 DATE: February 1, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for migraine headaches from February 27, 2012, to November 13, 2018, is granted. Entitlement to a rating in excess of 10 percent for a back disability is denied. FINDINGS OF FACT 1. From February 27, 2012, to November 13, 2018, the preponderance of the evidence shows that the migraine headaches caused very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The preponderance of the evidence shows that the Veteran’s back disability is manifested by adverse symptomatology that equates to at least flexion being less than 60 degrees and/or the combined range of motion of the thoracolumbar spine being 120 degrees or less even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis, or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 2 weeks during a 12-month period at any time during the appeal. CONCLUSIONS OF LAW 1. From February 27, 2012, to November 13, 2018, the criteria for a 50 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 4.124, Diagnostic Code 8100. 2. The criteria for a rating in excess of 10 percent for a back disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the United States Navy from June 2002 to June 2005. In an October 2019 decision, a Veterans’ Law Judge other than the undersigned issued a Board of Veterans’ Appeal (Board) decision that, among other things, denied a rating in excess of 30 percent for migraine headaches prior to November 13, 2018, granted a 50 percent rating for migraine headaches from November 13, 2018, and remanded the claim for an increased rating for a back disability. The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s October 2019 decision to the extent that it denied a rating in excess of 30 percent for migraine headaches prior to November 13, 2018. Given the scope of the JMPR, the Board has characterized the claim for an increased rating for migraine headaches as it appears above (i.e., Entitlement to a 50 percent rating for migraine headaches from February 27, 2012, to November 13, 2018) because the Veteran filed his increased rating claim on February 27, 2012, and the Board’s earlier adjudication of the post-November 13, 2018, time period for the migraine headaches’ rating remains undisturbed. Next, as to the claim for a higher rating for the back disability, the Board finds that the post-Remand development complied with the Remand. The Board has reached this conclusion because the Veteran was provided with a VA examination in March 2020 which is adequate to adjudicating the claim under all applicable Diagnostic Codes as well as because it addressed the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Lastly, the record shows that the Veteran has pending appeals for an earlier effective date and an increased rating for right leg radiculopathy as well as earlier effective dates for the grant of a total rating based on individual unemployability (TDIU) and Dependency and Indemnity Compensation. In this regard, the Board must note the fact that the Veteran already has TDIU. However, these issues will not be addressed in the current decision because they have not been certified to Board. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The Board must attempt to address the Court’s decisions, and their concerns, as quickly as possible. Further delay of the decision appealed to the Court must be avoided and may, in fact, be the cause of the fact that these other issues have not been returned to the Board. The Increased Rating Claims The Veteran claims, in substance, that he is entitled to higher ratings for his service-connected migraine headaches and back disability at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 assignment of a particular diagnostic code 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Migraine Headaches The Veteran’s migraine headaches are rated as 30 percent disabling from February 27, 2012, to November 13, 2018, under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating; with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent disability rating; and with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating. There is no higher evaluation beyond 50 percent. With the above criteria in mind, the Board notes that in a April 2019 statement in support of his claim, the Veteran stated that he pays out-of-pocket to see a massage therapist to help alleviate his migraine pain, but even with massages he still suffers from debilitating migraines, which occur 2 to 6 times a month. The Veteran also reported that his migraine headaches are accompanied by vomiting, spotty vision, sensitivity to light and sound, lightheadedness and dizziness. He also reported that each episode lasts from 6 hours to 4 days. The Veteran also stated that the migraines are so severe that he is unable to get out of bed without “becoming more ill and prolonging its intensity.” The appellant also reported that in between heavy migraines he suffers pain at level 5-8/10 and still suffers from light sensitivity; the migraine never goes away but only lessens. Lastly, the Veteran reported that on a debilitating series, the pain is 9/10 for the entire duration and “normal human functions become unmanageable.” The July 2012 VA headaches examination revealed the Veteran had migraine headaches including migraine variants that had increased in severity over several years compared to when it was evaluated in June 2009. The Veteran’s treatment plan did not include taking medication for his migraine headaches. The Veteran reported that e experienced constant head pain that was localized to one side that worsened with physical activity and lasted less than one day. He also reported that experienced nausea, vomiting, and sensitivity to light and sound. It was next noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. However, it was opined that the migraine headaches did not impact the Veteran’s ability to work. On January 2015 VA headaches examination, the Veteran reported having headaches daily stemming from his right posterior neck to right shoulder blade area, radiating up the right parietal/temporal area, to his right eye. The Veteran’s treatment plan included taking medication for his headaches. He related that he experienced headache symptoms of constant head pain with pain localized to one side of the head. He also experienced non-headache symptoms associated with headaches, such as nausea, vomiting, and sensitivity to light. The duration of typical head pain, which is on the right side of the head, was less than one day. It was opined that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The diagnosis was migraine including migraine variants. The January 2015 VA headaches examiner thereafter noted that that the Veteran’s migraines headaches are stable in severity and frequency and they are the same headaches as the original diagnosis for which he is service-connected. Regarding unemployability, while the Veteran reported that he did not work due to severe headaches, the examiner also noted that he was employable in a quiet, sedentary job. Lastly, it was noted that the Veteran appeared at the examination in no pain without photophobia/phonophobia even though he stated he had a headache. During a November 2018 VA-contract headache examination, the Veteran reported that his migraine feels like concrete in his neck; his neck gets stiff and tight pain goes up the right side of his head, radiates to frontal then clusters out. The Veteran next reported that he experiences vision spots, clammy sweaty, vomiting, and sound and light sensitivity. As to frequency, the Veteran reported that his headaches occur 2 times a month. His treatment plan includes taking medication. Next, the Veteran reported that he experiences constant, pulsating, or throbbing head pain that worsens with physical activity as well as nausea, vomiting, sensitivity to light and sound and changes in his vision. The Veteran reported that his head pain lasts one to two days. It was opined that he had characteristic prostrating attacks of migraine/non-migraine headache pain once every month. Moreover, while the examiner opined that he did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, the examiner provided no explanation for this determination. The diagnosis was migraine including migraine variants. Lastly, and as noted in the JMPR, the Veteran’s treatment records periodically documented his complaints and treatment for migraine headaches. In this regard, the JMPR specifically noted that treatment records from the Veteran’s acupuncture clinic document his treatment for migraines on numerous occasions between 2013 and 2016. Moreover, and as noted by the JMPR, “[o]n many of these occasions, the acupuncturist checked a box on a progress note indicating that Appellant’s pain interfered with work performance…[to include]... a March 12, 2014, letter from Appellant’s acupuncturist, in which the acupuncturist described several of Appellant’s ailments, past treatment and future treatment plans, and effects on quality of life …[with]… [m]igraines … among the ailments mentioned.” Tellingly, the Court has held that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Initially, the Board finds that the November 2018 VA examiner’s statement that the Veteran’s migraine headaches did not cause severe economic inadaptability lacks probative value because the examiner provided no explanation for this opinion and because it directly contradicts the Veteran’s competent and credible claims regarding his observable migraine headache symptomatology (i.e. constant, pulsating, or throbbing head pain that worsens with physical activity as well as nausea, vomiting, sensitivity to light and sound and changes in his vision) and the reports made by his private health care provider. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.”). On the other hand, the Board finds both competent and credible the Veteran’s claims regarding his migraine headaches causing constant, pulsating, or throbbing head pain that worsens with physical activity as well as nausea, vomiting, sensitivity to light and sound and changes in his vision because it comes to him via his own senses and because it is consistent with his reports to all of his VA examiners as well as to his private health care provider. See Davidson, supra; Owens, supra. Likewise, the Board finds both competent and credible the Veteran’s claims regarding the impact his migraine headaches have on employment (i.e., during the pendency of the appeal the Veteran reported that, while he was employed as a trainer driver expert, he lost 2 to 4 weeks of work in the last 12 months due to his migraine headaches because he cannot focus with severe headaches) along with his description of his migraines causing debilitation to the extent that normal functioning is unmanageable because it again comes to him via his own senses and it is again documented in the acupuncture clinic’s treatment records. Id. Lastly, the Board finds that the November 2018 VA examiner competently and credibly opined that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month because this opinion is both supported by the record and the appellant’s competent and credible lay observations. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, with resolving all reasonable doubt in the Veteran’s favor, the Board finds that the claimant’s service connected migraine headaches symptomatology is best characterized as causing very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at all times from February 27, 2012, to November 13, 2018. See 38 U.S.C. § 5107; Gilbert, supra; Owens, supra. Accordingly, the Board finds that the criteria for a 50 percent rating for the headaches have been met under Diagnostic Code 8100 at all times from February 27, 2012, to November 13, 2018. 38 C.F.R. § 4.124a; Owens, supra; Tatum, supra; Young, supra. The Back Disability The Veteran’s back disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back, the Board has not overlooked the Court’s holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because the March 2020 examiner specifically considered the range of motion of the thoracolumbar spine taking into account the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. Therefore, the Board finds that further delay by remanding this issue to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). With the above criteria in mind, the Board notes that under the General Rating Formula for Disease and Injuries of the Spine the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 20 percent, rating at any time during the appeal because flexion was not less than 60 degrees and the combined range of motion of the thoracolumbar spine was not the 120 degrees or less required for an increased rating. The Board has reached this conclusion because the ranges of motion of the Veteran’s back taking into account the above criteria were as follows at his VA examinations: at the July 2012 VA examination forward flexion of the thoracolumbar spine was 70 degrees and the combined range of motion of the thoracolumbar spine was 250 degrees; at the January 2015 VA examination forward flexion of the thoracolumbar spine was 90 degrees and the combined range of motion of the thoracolumbar spine was 270 degrees; at the November 2018 VA examination forward flexion of the thoracolumbar spine was 70 degrees and the combined range of motion of the thoracolumbar spine was 250 degrees; and at the March 2020 VA examination forward flexion of the thoracolumbar spine was 65 degrees and the combined range of motion of the thoracolumbar spine was 185 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also notes that the treatment records also do not document flexion being less than 60 degrees and the combined range of motion of the thoracolumbar spine being 120 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine during the appeal period because the record is negative for reports of guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in March 2014 and December 2018. See Colvin, supra. In fact, while the July 2012 VA examiner noted localized tenderness or pain to palpation, it was opined that there was no guarding or muscle spasm and no vertebral fracture. Similarly, at the January 2015 VA examination it was opined that there was no localized tenderness, pain to palpation, guarding or muscle spasm, and no vertebral fracture. Likewise, while the November 2018 VA examiner noted localized tenderness or pain to palpation and guarding or muscle spasm it was nonetheless opined that it did not result in abnormal gait or abnormal spinal contours and there was no vertebral fracture. Furthermore, while the March 2020 VA examiner noted localized tenderness or pain to palpation it was also noted that there were no muscle spasms. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing reports of guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the July 2012, January 2015, November 2018, and March 2020 VA examinations, are negative for his having physician ordered bedrest. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training and the medical the record does not show he ever had a total of at least 2 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Therefore, the Board also finds that the criteria for a rating in excess of 10 percent for the Veteran’s back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5243. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.