Citation Nr: 21006059 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-04 302 DATE: February 3, 2021 ORDER Entitlement to a compensable evaluation from January 1, 2011 to May 13, 2013 for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 10 percent disabling for lumbar spine disability from May 14, 2013 to March 31, 2020 is denied. Entitlement to an evaluation in excess of 40 percent disabling for lumbar spine disability from April 1, 2020 is denied. FINDING OF FACT 1. From January 1, 2011 to May 13, 2013, the Veteran’s lumbar spine disability was manifested by thoracolumbar forward flexion of the thoracolumbar spine greater than 85 degrees. 2. From May 14, 2013 to March 31, 2020, the Veteran’s lumbar spine disability was manifested by thoracolumbar forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 3. Since April 1, 2020, the Veteran’s lumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW 1. The criteria for entitlement to a compensable rating for service-connected degenerative disc disease of the lumbar spine with intervertebral disc syndrome from January 1, 2011 to May 13, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to a compensable rating in excess of 10 percent disabling for service-connected degenerative disc disease of the lumbar spine with intervertebral disc syndrome from May 14, 2013 to March 31, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. The criteria for entitlement to a rating in excess of 40 percent disabling for service-connected degenerative disc disease of the lumbar spine with intervertebral disc syndrome from April 1, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 through December 2010. The Veteran had a hearing before a Decision Review Officer (DRO) in April 2013 and a transcript is of record. The Veteran also had a hearing before the undersigned in November 2017 and a transcript is also of record. Following a lengthy procedural history, in March 2018, the Board remanded the issue of entitlement to an increased rating to the RO for further development. Said development has been accomplished and the appeal has been returned for further action. Stegall v. West, 11 Vet. App. 268 (1998). In April 2020, the RO issued a rating decision increasing the evaluation of lumbar spine degenerative disc disease / degenerative joint disease (DDD/DJD) (claimed as lower back condition) (hereinafter lumbar spine disability) from 10 percent disabling to 40 percent disabling effective April 1, 2020. The Veteran timely appealed the RO’s decision based on alleged entitlement to a compensable evaluation prior to May 14, 2013 in excess of 10 percent prior to April 1, 2020 and an evaluation in excess of 40 percent disability from April 1, 2020 to present. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall 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 basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between joint motion pain as opposed to pain that places further limitation of the particular range of motion. Disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The examination upon which ratings are based must adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. §§ 4.40, 4.45, 4.59 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 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. Burton v. Shinseki, 25 Vet. App. 1 (2011). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the rating claim was filed until a final decision is made. Different ratings can be assigned for separate periods of time based on the facts found. This is a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected lumbar spine disability has been rated under Diagnostic Codes 5242 and 5243. The Board notes that, while the Diagnostic Codes for the Veteran’s lumbar spine disability have changed during the appeal period, all spine disabilities are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as 10 percent disabling where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; rate as 20 percent disabling where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003 and Note (1). The General Rating Formula provides for assignment of a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or a 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 fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 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 is zero to 30 degrees, and left and right lateral rotation is 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. Id. at Note (2). See also 38 C.F.R. § 4.71a, Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, disability involving disc disease may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. Factual Background The Veteran asserts that his service connected DDD/DJD of the lumbar spine is more severe than his current disability rating reflects. The Veteran has been rated at 40 percent disabled for service-connected DDD/DJD of the lumbar spine, rated under Diagnostic Code 5243 of 38 C.F.R. § 4.71a. Specifically, the Veteran contends that his lumbar spine disability should be granted at a compensable evaluation prior to May 14, 2013 in excess of 10 percent prior to April 1, 2020 and an evaluation in excess of 40 percent disability from April 1, 2020 to present. In his Appellate Brief, the Veteran contends that he should be compensated at a higher degree than currently rated, back to his original claim date, due to the fact that he has been suffering from the same symptoms since that time. At the hearing in November 2017, before the undersigned, the Veteran testified that he injured a disc in his back and has had back spasm which last an upwards of 72 hours which sometimes cause him to be bedridden and/or incapacitated. He testified that the spasms (and flare ups) occur every two to three months depending on his activity and had occurred prior to 2013. The Veteran also testified that he has difficulty lifting, putting on socks and other activities of daily living due to his lumbar spine disability. As far as the medical evidence, at a November 2010 private examination, the Veteran reported a blown lower disk in 1987 as a result of a wrestling event. He reported stiffness, spasms, decreased motion with severity of pain ranging from moderate to severe, worsened by physical activity and relieved by rest. On examination, the examiner found flexion at 90 degrees with no evidence of radiation pain on movement nor evidence of weakness, muscle spasm, tenderness, guarding, atrophy of limbs or change in muscle tone. The examiner found negative indicators in the straight leg raise test and Lasegue’s signs on the right and left with extension, right and left lateral flexion, and right and left rotation at 30 degrees. The examiner observed that pain, weakness, lack of endurance, fatigue or incoordination does not impact further on the range of motion. The examiner also observed position of head and curvature of the spine within normal limits with no degree of pain on any range of motion. The examiner opined that there was no current pathology identified on physical examination to render a diagnosis and that the lumbosacral spine and thoracic spine were negative by X-ray. At a May 2013 VA examination, the Veteran reported that he had a ruptured lumbar disc in 1987 or 1988 and was put on bed rest for 72 hours and given pain medication. He reported that he was diagnosed with mild degenerative changes in 2004, had a lumbar sprain in 2008 and would have weekly flare ups which were aggravated by certain movements including lifting, and lasting from three to four hours at time. The examiner confirmed the Veteran’s 2008 diagnosis of DDD/DJD of the lumbar spine. The examiner observed forward flexion at 75 degrees, extension at 10 degrees, bilateral lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and lateral rotation to 20 degrees. The examiner observed pain with all ranges of motion with additional limitations to include less and weakened movement, excess fatigability, pain and interference with sitting standing and/or weight-bearing. The examiner also observed localized tenderness to the paravertebral area, mid lumbar spine with abnormal gait, positive straight leg testing, no radiculopathy and no intervertebral disc syndrome. The examiner further observed normal vertebral alignment and stature, facet arthropathy identified at L5-S1 and narrowing of the disc spaces at each level with anterior osteophytes L3-L5. At a July 2017 VA examination, the examiner found no acute fracture or significant subluxation of the lumbar spine, mild degenerative changes noted throughout the lumbar spine, mild straightening of the normal lordotic curve noted and mild disc space narrowing noted from L1 through L3 and at L5-S1. At an April 2020 VA examination, the Veteran reported chronic intermittent daily low back pain, which worsens with flexion, extension, prolonged standing, prolonged sitting, twisting, or lifting weight. The Veteran further reported back pain without radiation, specifically denied radicular symptoms and that he self-treats with over-the-counter nonsteroidal anti-inflammatory drugs. The examiner observed abnormal range of motion with forward flexion to 30 degrees and extension to 15 degrees, as well as pain with weight bearing, tender midline from T11 through L4, and bilateral facets at L3-4 and L4-5. The examiner did not observe ankylosis of the spine and the Veteran had negative straight leg raising. The examiner diagnosed the Veteran with intervertebral disc syndrome and arthritis. The examiner opined that there is mild straightening of the normal lumbar lordosis with mild facet joint degenerative changes along with a small broad-based disc bulge and annular tear without significant central canal stenosis or neural foraminal compromise at L3-L4; mild loss of disc height and signal along with a broad-based disc bulge and small annular tear, and mild facet joint degenerative changes and ligamentum flavum hypertrophy producing mild bilateral neural foraminal narrowing at L4-L5; and loss of disc height and signal along with a broad-based disc-osteophyte complex and small annular tear with mild facet joint degenerative changes and ligamentum flavum hypertrophy producing mild right and moderate left neural foraminal narrowing at L5-S1. Analysis 1. Entitlement to a compensable evaluation from January 1, 2011 to May 14, 2013 for a lumbar spine disability. After careful review of the evidence of record, the Board finds that for the period from January 1, 2011 to May 14, 2013, a compensable rating for lumbar spine with IVDS under the General Rating Formula is not warranted. There is no evidence of lumbar flexion limited to 60 degrees. Indeed, the Veteran’s forward flexion measured 90 degrees at most during this time. There is no evidence of ankylosis, muscle spasm, or guarding severe enough to result in abnormal gait or abnormal spine contour. There is no indication that the Veteran was prescribed bedrest by a physician for IVDS during this period. As such, a higher rating is not warranted for IVDS based on Diagnostic Code 5243. Overall, the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a noncompensable disability rating during this period. The Board notes that the Veteran has asserted that his back disorder warrants a higher disability rating. However, objective findings in the record do not support this assertion. The Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by the VA medical professionals who have examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has considered whether there are any other Diagnostic Codes which could apply to the Veteran’s lumbar spine disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis which provides for a compensable rating only if one is not available under the general formula. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, in this case DC 5243. Here, X-rays indicate no limitations in range of motion. Thus, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned during this period. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his lumbar spine disability that is not already service connected. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a compensable evaluation from January 1, 2011 to May 14, 2013 for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as his symptoms are supported by pathology consistent with the assigned rating. Though the Veteran asserts lumbar pain during the appeal period, the effect of the pain in the Veteran’s back is contemplated in the currently assigned disability evaluation. The Veteran’s assertions do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, the Board finds that the weight of the evidence is against the claim for an initial compensable rating for lumbar spine disability from January 1, 2011 to May 14, 2013. 2. Entitlement to an evaluation in excess of 10 percent disabling for lumbar spine disability from May 14, 2013 to April 1, 2020. After careful review of the evidence of record for the period from May 14, 2013 to April 1, 2020, the Board finds that a compensable rating in excess of 10 percent for lumbar spine with IVDS under the General Rating Formula is not warranted. There is no evidence of lumbar flexion limited to 60 degrees or a combined range of motion less than 120 degrees. Actually, the Veteran’s forward flexion measured 75 degrees during this time as well as extension at 10 degrees, bilateral lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and lateral rotation to 20 degrees which results in a combined range of motion of 155 degrees. There is no evidence of ankylosis, muscle spasm, or guarding severe enough to result in abnormal gait or abnormal spine contour. Though the May 2013 VA examiner observed localized tenderness to the paravertebral area, mid lumbar spine with abnormal gait and positive straight leg testing, there is no indication that the Veteran was prescribed bedrest by a physician for IVDS during this period nor did the examiner observe radiculopathy or intervertebral disc syndrome. Additionally, the examiner further observed normal vertebral alignment and stature. As such, a higher rating is not warranted for IVDS based on Diagnostic Code 5243 as the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a compensable disability rating of 10 percent during this period. The Board considered the Veteran’s contentions regarding a higher disability rating for his lumbar spine disorder during the applicable period. However, objective findings in the record do not support this contention. As discussed above, the Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability and the medical findings are more probative in this regard. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board again considered whether there are any other Diagnostic Codes which could apply to the Veteran’s lumbar spine disability during this period, to include Diagnostic Code 5003 for arthritis. which provides for a compensable rating only if one is not available under the general formula. Thus, it is not applicable to this case. Thus, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned during this period. Additionally, a separate disability rating is not warranted for the reasons previously discussed herein. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). The Board again considered functional loss due to pain or weakness during this period at issue and finds that a rating in excess of 10 percent disabling from May 14, 2013 to April 1, 2020 is not warranted. The May 2013 VA examiner observed pain with all ranges of motion with additional limitations to include less and weakened movement, excess fatigability, pain and interference with sitting standing and/or weight-bearing. However, the Board finds that the functional loss the Veteran experienced during this period is contemplated by the factors for lumbar spine disability rated as 10 percent disabling. Again, the Veteran’s assertions do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. As such, the Board finds that the weight of the evidence is against the claim for an initial compensable rating for lumbar spine disability from May 14, 2013 to April 1, 2020. 3. Entitlement to an evaluation in excess of 40 percent disabling for lumbar spine disability since April 1, 2020. Lastly, the Board reviewed the evidence of record for the period since April 1, 2020 and finds that a compensable rating in excess of 40 percent for lumbar spine with IVDS under the General Rating Formula is not warranted. The April 2020 VA examiner observed abnormal range of motion with forward flexion to 30 degree and extension to 15 degrees, as well as pain with weight bearing, tender midline from T11 through L4, and bilateral facets at L3-4 and L4-5. However, the examiner did not observe ankylosis of the spine. Additionally, there is no indication that the Veteran experienced incapacitating episodes having a of at least 6 weeks during the past 12 months nor was he prescribed bedrest by a physician for IVDS during this period. As such, a higher rating is not warranted for IVDS based on Diagnostic Code 5243 as the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a compensable disability rating of 40 percent during this period. The Board considered the Veteran’s assertions regarding a higher disability rating for his lumbar spine disorder during the applicable period. However, objective findings in the record do not support this contention as the April 2020 VA examination is more probative than the Veteran’s reports of symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Again, Diagnostic Code 5003 is not applicable for this period as the Veteran has a compensable rating of 40 percent disabling. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Lastly, the Board again considered functional loss due to pain or weakness during this period at issue and finds that a rating in excess of 40 percent disabling since April 1, 2020 is not warranted as any functional loss is contemplated in the currently assigned disability evaluation. As such, the Board finds that the weight of the evidence is against the claim for a compensable rating in excess of 40 percent disabling for lumbar spine disability since April 1, 2020. Accordingly, entitlement to a compensable evaluation from January 1, 2011 to May 14, 2013, in excess of 10 percent disabling from May 14, 2013 to April 1, 2020, and in excess of 40 percent disabling since April 1, 2020 for lumbar spine disability is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.