Citation Nr: 21006323 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-03 084 DATE: February 3, 2021 ORDER The claim of entitlement to service connection for a left ankle disorder is denied. The claim of entitlement to service connection for Meniere’s disease is denied. The claim of entitlement to service connection for left ear hearing loss disability is denied. The claim of entitlement to an initial disability rating in excess of 10 percent for the period prior to July 9, 2020, and in excess of 40 percent thereafter, for degenerative spondylosis of the thoracolumbar spine, is denied. FINDINGS OF FACT 1. The Veteran’s left ankle tendonitis did not originate during active service or during any period of active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA), was not aggravated during any period of ACDUTRA or INACDUTRA, and is not otherwise etiologically related to any period of active duty or ACDUTRA or INACDUTRA. 2. The Veteran has not been diagnosed with Meniere’s disease. 3. The Veteran does not have a left ear hearing loss disability for VA purposes. 4. For the period prior to July 9, 2020, the Veteran’s lumbar spine disability was manifested by pain and limitation of motion with forward flexion limited to 55 degrees with consideration of pain. 5. From July 9, 2020, the Veteran’s lumbar spine disability has been manifested by forward flexion to 30 degrees or less. Unfavorable ankylosis of the entire thoracolumbar spine is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2019). 2. The criteria for entitlement to service connection for Meniere’s disease have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2019). 3. The criteria for service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 4. The criteria for an initial disability rating in excess of 20 percent, but no more, for service-connected degenerative spondylosis of the thoracolumbar spine for the period prior to July 9, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2019). 5. The criteria for an initial disability rating in excess of 40 percent for service-connected degenerative spondylosis of the thoracolumbar spine for the period from July 9, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from January 10, 2006, to June 22, 2006, and on active duty from November 2007 to September 2008, to include service in Iraq during the Gulf War. He also served in the Air Force Reserves from October 2005 to September 2013. In November 2019, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board. The transcript of that hearing is of record. The issues on appeal were remanded for additional evidentiary development in December 2019 and have now been returned for further appellate consideration. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2019). When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101 (21), (24), 106 (2012); 38 C.F.R. § 3.6(a)(d) (2019). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 U.S.C. § 101 (22) (2012); 38 C.F.R. § 3.6(c)(1) (2019). This refers to the two weeks of annual training which each Reservist must perform each year. It may also refer to the Reservist’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by members of the Reserves. 38 U.S.C. § 101 (23) (2012); 38 C.F.R. § 3.6(d) (2019). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not appropriate. Service connection may also be granted for claims related to service during the Persian Gulf War if there is (1) an undiagnosed illness, and (2) evidence of a chronic disability. Gutierrez v. Principi, 19 Vet. App. 1 (2004). The chronic disability must not be attributed to any known clinical diagnosis and must result from an illness or combination of illnesses manifested by one or more signs and symptoms that (1) became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or (2) manifested to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1)(i)-(ii) (2019). Qualifying chronic disabilities include medically unexplained chronic multi-symptom illnesses-such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome-that are defined by a cluster of signs or symptoms. 38 U.S.C. § 1117 (a). Signs and symptoms include: (1) fatigue; (2) unexplained rashes or other dermatological signs or symptoms; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) upper or lower respiratory system signs or symptoms; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 U.S.C. § 1117(g) (2012). Manifestations of undiagnosed illness may be presumptively service connected unless there is affirmative evidence that an undiagnosed illness (1) was not incurred in service or (2) was caused by a supervening condition. 38 C.F.R. § 3.317(a)(7) (2019). Service personnel records confirm that the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness. 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 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a left ankle disorder The Veteran asserts that his left ankle disability is related to service. At the November 2019 hearing, he testified that his left ankle problems began during service. He carried heavy equipment for 12-14 hours per day on uneven ground. He recalled slowly rolling his ankle with resulting pain. He did not seek inservice treatment, but believes his problems are related to service. Turning to the evidence of record, and as already noted, the Veteran served on active duty from January 10, 2006, to June 22, 2006, and from November 2007 to September 2008. He also served in the Air Force Reserves from October 2005 to September 2013. The Veteran was seen prior to service in 2007 for left ankle complaints (pain and swelling). X-ray was negative. The service treatment records (STRs) are negative for report of or diagnosis of a left ankle disorder, but post service records do show continued left ankle complaints from 2009 to the present day. When seen in November 2009, the Veteran said that he sprained his ankle two weeks earlier. From that date forward, the record shows treatment for left ankle problems, to include in June 2010 (acute gouty arthritis), July 2010 (acute gouty arthritis), November 2010 (tenosynovitis), December 2010, July 2011 (tendonitis/tenosynovitis), December 2011, and April 2012 (arthritis). In a December 2015 report, a private physician, M.H., MD, stated that he had treated the Veteran since 2008. Throughout this period, the Veteran had been dealing with left ankle complaints, related to sprain and tendinitis, and he also had ankle arthritis. The physician noted that the Veteran related that he carried heavy equipment when he was deployed in Iraq for long periods of time. This, he believed, could have led to wear and tear of the affected ankle joint. It was his opinion that it was more likely than not that the Veteran’s physical training during military service contributed to his current ankle condition. In a March 2020 independent medical examination report, private physician, J.W.E., MD, opined that the Veteran’s current left ankle disorder began during service. This was a sudden onset, and he was subsequently diagnosed with gout. The Veteran continued to have left ankle pain and instability. The diagnosis was acute gout, and it was the examiner’s opinion that this condition developed “while in the Air Force.” Moreover, he had left ankle arthritis which contributed to the instability which required a left ankle brace. At the July 2020 VA examination the examiner reviewed the claim file and an in-person examination was conducted. The diagnosis was left Achilles’ tendonitis. It was opined that the left ankle disorder was less likely than not related to any period of service. For rationale, he noted that there was no clear and unmistakable (undebatable) evidence of a left ankle disorder that preexisted service. When the Veteran was treated in November 2009, November 2010, and July 2011, for left ankle sprain/tendonitis, this was not during a period of active duty, ACDUTRA, or INACDUTRA. After consideration of the entire record and the relevant law, the Board finds that the Veteran’s left ankle disability is not related to any period of service. His left ankle disability did not manifest in active service, to include during a period of ACDUTRA, and is not otherwise related to disease or injury in ACDUTRA or injury in INACDUTRA. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F. 3d 1328 (1997). Here, there is a present disability, as the Veteran was diagnosed with a left ankle disorder in 2009 and thereafter. Therefore, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). The Board notes, however, that the Veteran’s STRs contain no complaints, diagnosis, or treatment of a left ankle injury from carrying heavy weight while on active service, ACDUTRA, or INACDUTRA. While the Board recognizes the Veteran’s testimony that he carried heavy equipment for 12-14 hours per day on uneven ground and recalled slowly rolling his ankle with resulting pain, he acknowledged that he did not seek inservice treatment. The first report of a chronic left ankle disorder was more than one year later in November 2009 during a period when he was not on active duty, to include that this was not during a period of ACDUTRA or INACDUTRA. Additional treatment for his left ankle was also during periods not reflected to be during active service, ACDUTRA or INACDUTRA. Significantly, the VA examiner’s July 2020 examination report includes the most thorough and factually supported opinions of record, given that it is consistent with other evidence of record and included review of the claims file as well as the Veteran’s hearing testimony and his lay statements, and the private physicians’ 2015 and 2019 statements of record. The VA examiner determined that there was no nexus between the Veteran’s left ankle disability and his military service. The examiner has training, knowledge, and expertise on which to he relied to form his opinions, and he provided persuasive rationale for them. The Board finds the July 2020 VA examiner’s opinion more probative than that of the December 2015 and March 2020 private physicians’ opinions as the private physicians did not address the fact that all recorded medical treatments of record were not during periods of active duty, ACDUTRA, or INACDTURA. Moreover, when initially seen in 2009, he reported that he sprained the left ankle just weeks before. The Board acknowledges the Veteran’s contentions that his current left ankle disability is related to service. He is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at a particular time following service). While the Veteran is competent to report observable symptoms, the Board finds that determining the etiology of a chronic left ankle disorder requires more than a layperson can be expected to competently address. In this case, the etiology of his left ankle disability is a complex medical question that is not within the competence of a lay person and requires medical expertise. As there is no indication that the Veteran has any medical training, education or expertise, the Board finds he is not competent to etiologically link any such symptoms to a current diagnosis. Therefore, the Veteran’s lay assertions in the present case are outweighed by the existing medical opinions of record. As such, the Board finds that direct service connection is not warranted. Taking into account all the relevant evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for a left ankle disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See Gilbert; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for Meniere’s Disease It is contended that service connection is warranted for Meniere’s disease. Review of the STRs is negative for complaint of or diagnosis of Meniere’s disease during active service, to include any periods of ACDUTRA or INACDUTRA. In a private report dated in December 2014, the Veteran was seen for a long history of hearing loss. He experienced some episodes of imbalance. He was worried that he had Meniere’s disease. The assessment included positional vertigo versus peripheral neuropathy versus nystagmus. Additional testing in February 2015 supported the presence of a non-localized vestibular dysfunction. A VA treatment record dated in September 2015 noted that the Veteran experienced some dizziness. This was thought to likely have a vestibular cause. He was going to have a magnetic resonance imaging (MRI) done but his insurance would not pay for it. A private examiner reported in December 2015 that he had treated the Veteran since 2008. He noted that the Veteran had been seen for vestibular dysfunction by his ear, nose, and throat doctor. He also had hearing loss and tinnitus. It was his opinion that the Veteran’s vestibular dysfunction could be related to exposure to inhaling toxins as he worked close to a burn pit during his time in Iraq. In an independent medical examination dated in March 2020, it was the private examiner’s opinion that the Veteran’s inservice noise exposure resulted in his Meniere’s disease and vertigo. VA examination of the auricles was conducted in July 2020. The Veteran’s hearing was normal, and he did not meet the diagnostic criteria for Meniere’s disease. It was the examiner’s opinion that it was less likely than not (less than 50 percent probability) that Meniere’s disease was incurred in or caused by military service. For rationale, it was noted that there was no diagnosis of the condition during service, and the condition was not currently seen. It was the examiner’s opinion that the Veteran’s dizziness was most likely a side effect from his hypertension medication. After consideration of the entire record and the relevant law, the Board finds that service connection for Meniere’s disease is not warranted. As indicated above, the Veteran has occasionally reported dizziness and it was noted on several occasions that he likely had vestibular dysfunction. While a private physician in 2015 associated the condition to in-service exposure to toxins, and a 2020 examiner associated the condition to in-service noise exposure, the Board finds the July 2020 VA examiner’s report to be more probative as that evaluation was based on review of the record and a contemporaneous exam which was negative for diagnosis of Meniere’s disease. It does not appear that the private examiners conducted examination of the ears or auricles. They merely provided an opinion as to etiology based on a review of the record and assumption that Meniere’s was present. (The Board notes that while the condition was suspected, it was not diagnosed by a specialist at any time.) Moreover, as to complaints of dizziness, the VA examiner attributed such to the claimant’s hypertension medication. The Veteran, as a lay person, is competent to report what he has experienced. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). In this case, however, Meniere’s disease is not demonstrated. The question as to whether he has this disorder is a complex medical question. Accordingly, appropriate medical expertise is required to make this determination. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to diagnose Meniere’s disease. See 38 C.F.R. § 3.159(a)(1) (2019). Moreover, while he is competent to report what she experienced, the medical evidence demonstrates that he does not have the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board affords more weight to the July 2020 VA examiner’s finding that the Veteran does not have Meniere’s disease, than it does to his assertions to the contrary. The Veteran has claimed service connection for Meniere’s disease due to exposure to environmental hazards during the Gulf War. In order to establish service connection for the Veteran’s claimed disability of Meniere’s disease due to an undiagnosed illness, the legal criteria provide, in pertinent part, that the illness or symptoms not be attributable to any known clinical diagnosis by history, physical examination, and/or laboratory tests. 38 C.F.R. § 3.317 (2019). Here, Meniere’s disease is a medically explained chronic illness, and a competent medical opinion of record indicates that he does not have the disorder. As the competent evidence of record does not show a current diagnosis of Meniere’s disease at any time during the pendency of the claim, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.”) The Board has considered the benefit of the doubt rule, but the preponderance of evidence is against the claim. Entitlement to service connection for a left ear hearing loss Service connection is in effect for right ear hearing loss disability. The Veteran testified in 2019 that it was his belief that his left ear also warranted service connection for a left ear hearing loss disability. With respect to hearing loss, VA has specifically defined what is meant by a “disability” for the purposes of service connection: “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385 (2019). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A veteran is not required to show that hearing loss was present during active military service in order to establish service connection. See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Rather, he/she may establish the required nexus between his/her current hearing disability and his/her term of military service by showing that his/her current hearing disability resulted from personal injury suffered in the line of duty. Id. Claims for service connection must be considered on the basis of the places, types and circumstances of a claimant’s military service. 38 C.F.R. § 3.303(a) (2019). During a period of active duty, an audiogram was conducted in January 2008. At that time, pure tone thresholds in the left ear were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 0 -5 -5 -5 5 Upon VA audiology testing in August 2014, pure tone threshold in the left ear were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 30 25 25 25 35 The average pure tone decibel loss was 27.5. Speech discrimination score was 94 percent. Left ear hearing was assessed as normal. Upon VA audiogram testing in September 2017, pure tone thresholds were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 15 20 20 15 25 The average pure tone decibel loss was 20. Speech discrimination score was 96 percent. Left ear hearing was assessed as normal. When examined by VA in June 2020, the examiner reviewed the claims file and found that various in-service and reserve duty audiograms were available for review. None showed left ear hearing loss. Left Ear pure tone thresholds were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 10 10 10 10 15 The average pure tone decibel loss was 11.25. Speech discrimination score was 96 percent. Left ear hearing was assessed as normal. After a review of the record, the Board finds that the Veteran does not have a left ear hearing loss disability for VA purposes. As reflected above, at no time has a left ear hearing loss been noted upon audiometric testing. The audiology test results do not support a diagnosis of hearing loss for VA purposes for the left ear ear. 38 C.F.R. § 3.385 (2019). At no time do VA examination reports show that the Veteran met the auditory threshold of 40 decibels at any frequency level or the auditory threshold for at least three frequencies at 26 decibels or greater; nor does the Veteran have speech recognition scores less than 94 percent. Therefore, at no time during the period on appeal has the Veteran met the criteria for a right ear hearing loss disability pursuant to 38 C.F.R. § 3.385 (2019). The Board acknowledges that the Veteran contends that he experienced in-service acoustic trauma and hearing loss during or shortly after his deployment. In this regard, the Board notes that the Veteran’s in-service noise exposure was recognized at the time of the September 2014 rating decision denial. However, because the Veteran has never had hearing loss for VA purposes in the left ear, the Board need not conduct any further analysis regarding in-service occurrence or a nexus, and the Veteran’s appeal on this issue must be denied. See Brammer, (holding that where no disability exists, no further analysis is required); Gilbert, supra; 38 C.F.R.§§ 3.102, 3.303(a), 3.307(a)(3), 3.309(a), 3.385 (2019). To the extent that the Veteran believes that he experiences symptoms of difficulty hearing, the Veteran is competent to testify as to readily observable symptoms such as diminished hearing. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr, supra. The Veteran, as a layperson, is not competent to report that any symptoms that he currently experiences rise to the level of a “disability” for VA purposes, which requires that hearing loss reaches a certain threshold before it is considered disabling. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a left ear hearing loss disability. Therefore, the Board finds that the criteria for service connection for left ear hearing loss have not been met. In light of the foregoing, the preponderance of probative evidence of record is against the Veteran’s claim for entitlement to service connection for left hearing loss. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert, supra. Service connection for left ear hearing loss is therefore denied. Entitlement to an initial disability rating in excess of 10 percent for the period prior to July 9, 2020, and in excess of 40 percent thereafter for degenerative spondylosis of the thoracolumbar spine. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s back condition has an initial disability rating of 10 percent and a 40 percent disability rating, effective July 9, 2020, under DC 5242. DC 5242 is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235-5243. Under this formula, a 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, thoracolumbar spine combined range of motion 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Note (5) explains that unfavorable ankylosis is a condition in which 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. 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 38 C.F.R. §§ 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 (musculoskeletal system) or § 4.73 (muscle injury); 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.”). Upon rating decision in September 2014, service connection was granted for degenerative spondylosis, and a 10 percent rating was assigned, effective September 2014. The Veteran was seen during ACDUTRA in January 2006 for low back pain. When examined by VA in August 2014, he said that his back problems started in January 2006 when he fell off of a bunk bed. Forward flexion was to 80 degrees. Pain began at 55 degrees. Extension ended at 20 degrees with painful motion beginning at 20 degrees. Right and left lateral flexion were to 25 degrees. Right and left lateral flexion and rotation ended at 25 degrees. Right and left lateral flexion and rotation showed painful motion at 25 degrees. and X-ray showed minimal osteoarthritis at the upper thoracic spine. The conclusion was of minimal degenerative spondylosis. There was no additional limitation in ROM of the thoracolumbar spine following repetitive use testing. Functional loss included less movement than normal, weakened movement, excess fatigability, and pain on movement. The Veteran did not have intervertebral disc syndrome (IVDS). VA records reflect treatment for chronic low back pain in 2015 and 2016. At the November 2019 hearing, the Veteran testified that his low back disability had worsened since last examined. The Board remanded the claim in December 2019 for additional development. When examined by VA in July 2020, lumbosacral strain, degenerative spondylosis, and left lower extremity (LLE) radiculopathy were noted. ROM testing showed forward flexion to 25 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees. Pain was noted and caused functional loss. There was pain on forward flexion and localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was objective evidence of pain with weight bearing. Following repetitive use testing, there was additional loss of function or ROM. Forward flexion was to 20 degrees, extension was to 15 degrees, right and left lateral flexion were to 15 degrees, and right and left lateral rotation were to 25 degrees. Factors that caused functional loss included pain, fatigue, weakness, and lack of endurance. There was guarding or muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spine contour. The examiner noted that the Veteran had less movement than normal, weakened movement, disturbance of locomotion, interference with sitting and with standing, due to his low back disorders. Examination showed mild LLE numbness. There was no ankylosis. IVDS was not shown. Under the heading “Correia Criteria,” it was noted that there was objective evidence of pain when the back was used in non-weight bearing. Passive ROM was the same as active ROM. In a July 2020 rating decision, the 10 percent rating in effect for the service-connected thoracolumbar spine disorder was increased to 40 percent, effective the date of the VA examination on July 9, 2020. Service connection was separately established for radiculopathy of the femoral nerve and the sciatic nerve of the LLE. Prior to July 9, 2020. Upon review of the evidence, the Board finds that an initial disability rating in excess of 10 percent is not warranted. Specifically, the evidence of record shows some functional loss in the form of pain on movement. Moreover, at the August 2014 VA examination it was noted that forward flexion was limited to 55 degrees upon consideration of pain. Therefore, functional impairment of forward flexion to 55 degrees has been shown by the record and a 20 percent disability rating is warranted for the period of time prior to July 9, 2020. However, the functional loss does not demonstrate forward flexion limited to 30 degrees or unfavorable ankylosis at any time during this period of time. The Board has considered whether a higher rating would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board finds that the 20 percent rating assigned adequately contemplates the Veteran’s disability picture to include functional impairment and loss due to pain, flare-ups, and repetitive use. The Board has considered the Veteran’s lay statements regarding the functional impact of his back condition, including reports of difficulty standing, walking, and moving during flare-ups. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. See Jandreau, supra. His statements are consistent with the evidence of record and the rating assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the evidence of record. To the extent that the Veteran argues his symptomatology is more severe than that shown during the VA examinations, his statements must be weighed against the other evidence of record, and the specific examination findings of trained health care professionals are of greater probative weight than more general lay assertions. From July 9, 2020. As a preliminary matter, the Board must consider whether the agency of original jurisdiction (AOJ) has adequately complied with its earlier remand orders and with the duty to assist the Veteran by obtaining an adequate examination report. As noted, the increased rating claim was remanded for a contemporaneous examination and for ROM testing as enumerated in the decision of Correia v. McDonald, 28 Vet. App. 158 (2016). Review of the July 2020 examination includes estimates of functional loss in terms of limited degrees of ROM after repeated use over time and during flare-ups. Unfortunately, it appears that the report did not strictly comply with Correia because while the report indicates that pain was present during the testing methods required by the regulation, the examiner did not provide separate ROM test results for each kind of testing. Fortunately, the Board is able to conclude that, because of the AOJ’s July 2020 decision increasing the rating assigned to the Veteran’s thoracolumbar spine condition from 10 percent to 40 percent as of the date of the VA examination, the failure of the respective VA examiners to strictly comply with Correia is harmless error. The Board could potentially remand the lumbar spine increased rating claim for a new examination to insist on strict compliance with Correia. But any post-remand examination would provide information about the condition of the Veteran’s spine during a period when he has already been assigned the highest available rating based on limited motion and when a higher rating requires ankylosis. For this reason, a new spine examination would serve no useful purpose. Furthermore, the Board finds that the Veteran’s back condition does not warrant a disability rating in excess of 40 percent after July 9, 2020. To warrant a rating higher than 40 percent under the General Rating Formula the Veteran’s back condition must manifest in unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. As noted, unfavorable ankylosis is a condition in which the cervical, lumbosacral or entire spine is fixed in flexion or extension. See 38 C.F.R. § 4.71a, Note (2). In this case, the treatment records and VA examination reports do not indicate the presence of ankylosis in the Veteran’s spine at any point and he has not alleged that his back is fixed in flexion or extension. Therefore, a rating higher than 40 percent is not warranted under the General Rating Formula. The Board notes that as a 40 percent evaluation is the highest schedular rating for limitation of motion of the spine, the regulatory provisions pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Lastly, the Board has also considered other DCs; however, the Board finds that they are not applicable. In accordance to Note (1) under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. The Board finds that the evidence does not support a finding for separate evaluations for neurologic abnormalities as the Veteran did not exhibit neurological abnormalities related to the thoracolumbar spine at any time during the appellate period. Furthermore, the Veteran has not been diagnosed as having IVDS at any time during the appeal period that resulted in bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Note (1). In sum, the Board finds that an evaluation of 20 percent, but no more, for the period prior to July 9. 2020, and an evaluation in excess of 40 percent, thereafter, is not warranted. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert, supra. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.