Citation Nr: 21009858 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-03 445 DATE: February 23, 2021 ORDER For the entire period on appeal, an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability, to include degenerative disc disease (DDD) and degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS), is denied. For the period on appeal from February 17, 2020, a separate evaluation of 10 percent, but not greater, for the Veteran’s disability of the right lower extremity, to include mild radiculopathy of the right sciatic nerve associated with the Veteran’s service-connected low back disability, is granted. For the period on appeal prior to August 11, 2020, an increased evaluation in excess of 10 percent for the Veteran’s service-connected neck disability, to include cervical displacement and degenerative disc disease (DDD), is denied. For the period on appeal from August 11, 2020, an increased evaluation in excess of 20 percent for the Veteran’s service-connected neck disability, to include cervical displacement and degenerative disc disease (DDD), is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service-connected low back disability has manifested pain, forward flexion of the thoracolumbar spine limited no less than 45 degrees, a combined range of motion of the thoracolumbar spine of no less than 130 degrees, without evidence of the following: unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; IVDS with incapacitating episodes more than two weeks during the past twelve months; or disc herniation with compression and/or irritation of the adjacent nerve root. 2. For the period on appeal from February 17, 2020, the Veteran’s right lower extremity manifested mild symptoms of radiculopathy, secondary to his service-connected low back disability, without evidence of the following: complete paralysis to include dangling or dropping of the foot, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost; severe incomplete paralysis, with marked muscular atrophy; or moderate or moderately severe paralysis. 3. For the period on appeal prior to August 11, 2020, the Veteran’s service-connected neck disability, to include cervical displacement and degenerative disc disease (DDD), manifested pain, forward flexion of the cervical spine of no less than 40 degrees, and a combined range of motion of the cervical spine of no less than 265 degrees, without evidence of forward flexion of the cervical spine of less than 30 degrees, a combined range of motion of the cervical spine of less than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. For the period on appeal from August 11, 2020, the Veteran’s service-connected neck disability, to include cervical displacement and degenerative disc disease (DDD), manifested pain, forward flexion limited to 30 degrees, and a combined range of motion of the cervical spine of 220 degrees, without evidence of forward flexion of the cervical spine not greater than 15 degrees or favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability, to include degenerative disc disease (DDD) and degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS), have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5242, 5243 (2020), Diagnostic Codes 5242, 5243 (2021). 2. For the period on appeal from February 17, 2020, the criteria for a separate evaluation of 10 percent for the radiculopathy of the Veteran’s right lower extremity, to include as due to his service-connected low back disability, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8520. 3. For the period on appeal prior to August 11, 2020, the criteria the assignment of an increased evaluation in excess of 10 percent for the Veteran’s service-connected neck disability have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. 4. For the period on appeal from August 11, 2020, the criteria for an increased evaluation in excess of 20 percent for the Veteran’s service-connected neck disability have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Navy from December 1991 to November 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in February 2020; a transcript of that hearing is of record. In April 2020, the Board remanded this appeal for further development, including scheduling the Veteran for VA examinations to evaluate his service-connected neck and low back disabilities. To the extent that the directed VA examination reports were procured in August 2020, the Board finds that substantial compliance with its remand directives pertaining to the Veteran’s neck and low back claims has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that an August 2020 rating decision granted the Veteran’s service connection claims for hypertension and radiculopathy of the left lower extremity; accordingly, as the Veteran has been awarded the maximum benefit sought for such claims, the issues of service connection for hypertension and radiculopathy of the left lower extremity are no longer in appellate status before the Board. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). The Board further notes that the August 2020 rating decision also increased the Veteran’s disability rating for his service-connected neck disability, from 10 percent to 20 percent, effective August 11, 2020. However, because this award amounts to less than the maximum benefit available for the Veteran’s service-connected neck disability, and because the Veteran has not indicated that he is satisfied with a 20 percent disability rating, the Veteran’s increased rating claim for his service-connected neck disability remains on appeal. See AB, 6 Vet. App. at 39-40. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disability evaluations are based upon 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. See 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. The assignment of a particular diagnostic code depends upon the facts of each particular case, and the Board is authorized to choose an appropriate diagnostic code that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the diagnostic code assigned to that disability is revised in order to more accurately reflect the veteran’s relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability. See 38 C.F.R. § 4.1, 4.2; Schafrath,1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran’s disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Effective dates for disability ratings may be established up to one year prior to the date of claim if, based upon all the evidence of record, it can be factually ascertained that an increase in the Veteran’s service-connected disability occurred during that year preceding the claim. See 38 U.S.C. § 5110(b)(3); C.F.R. § 3.400(o)(2). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. 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 veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See id. The factors involved in evaluating and rating disabilities of the joints include the following: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; or pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Where the veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See id. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See id. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. See id. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). In applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. See id. Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). However, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment; see id.; however, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board’s responsibility to consider all lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran’s claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). 1. For the entire period on appeal, an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability, to include degenerative disc disease (DDD) and degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS), is denied. 2. For the period on appeal from February 17, 2020, a separate evaluation of 10 percent, but not greater, for the Veteran’s disability of the right lower extremity, to include mild radiculopathy of the right sciatic nerve associated with the Veteran’s service-connected low back disability, is granted. The Veteran has been awarded a 20 percent evaluation under Diagnostic Code 5243 for his service-connected low back disability, effective December 1, 2007. The Veteran contends that the severity of his service-connected low back disability warrants an increased evaluation in excess of 20 percent; however, for the reasons set forth below, the Board finds that a preponderance of the evidence of record weighs against a finding that any increased evaluations pertaining to the Veteran’s service-connected low back disability are warranted in this case. Disabilities of the lumbar spine or low back are evaluated under the criteria set forth in Diagnostic Codes 5235 through 5243. See 38 C.F.R. § 4.71a (2020). Diagnostic Code 5242 provides that evaluations of degenerative arthritis of the lumbar spine shall be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See id. The General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, evaluations of the spine apply as follows: (1) a 100 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire spine; (2) a 50 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire thoracolumbar spine; (3) a 40 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; (4) a 30 percent evaluation is warranted where there is evidence of forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine; (5) a 20 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and (6) a 10 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. See id. Note 1 requires the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See id. Note 2 provides that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and 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. See id. Note 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). See id. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note 4 requires that each range of motion measurement be rounded to the nearest five degrees. See id. Note 5 provides that 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. See id. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disabilities of the thoracolumbar and cervical spine segments, must be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. See id. If applicable, spinal disabilities manifesting IVDS based on incapacitating episodes (preoperatively or postoperatively) may be rated under either the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25. The IVDS Rating Formula provides as follows: (1) a 60 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; (2) a 40 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; (3) a 20 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and (4) a 10 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. See 38 C.F.R. § 4.71a For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires treatment by a physician and bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. See id., Note 2. Degenerative arthritis established by x-ray findings must be evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. See id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See id. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, will warrant a 20 percent rating. See id. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups will warrant a 10 percent rating. See id. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. In addition, VA regulations require that any evaluation of a disability of the lumbar spine must also include a separate evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. Neurological abnormalities of the sciatic nerve are governed by Diagnostic Codes 8520 (paralysis), 8620 (neuritis), and 8720 (neuralgia). See 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrant a 60 percent disability rating. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost. See 38 C.F.R. § 4.121a, Diagnostic Code 8520. The terms “severe,” “moderate,” and “mild” are not defined in the Rating Schedule; thus, rather than applying a mechanical formula, VA must evaluate the totality of the evidence of record. See 38 C.F.R. § 4.6. In applying the schedular criteria for rating peripheral nerve disabilities, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See id. The Board notes that the criteria for the evaluation of musculoskeletal disabilities in the VA Rating Schedule have been amended effective February 7, 2021 (the 2021 Regulations); therefore, claims filed on or after February 7, 2021, must be evaluated under the 2021 Regulations. See 85 Fed. Reg. 76453-76469 (November 30, 2020); 85 Fed. Reg. 85523-85524 (December 29, 2020). In this case, although the Veteran’s low back claims were filed prior to February 7, 2021, to the extent that the periods on appeal relating to such claims extend beyond February 7, 2021, such claims must be evaluated under both the prior regulations and the 2021 Regulations, and the set of criteria most favorable to the Veteran must be applied. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Amended Diagnostic Code 5242 governs degenerative arthritis and degenerative disc disease other than IVDS and applies the General Rating Formula, just as the prior Diagnostic Code 5242. Amended Diagnostic Code 5243 governs Intervertebral Disc Syndrome (IVDS) and provides applies only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Diagnostic Code 5242 for all other disc diagnoses. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2021). In this case, the Board finds that the application of either set of criteria does not modify the Board’s analysis of the Veteran’s claim in any appreciable manner, as under either set of regulations, the General Formula, which has not been amended by the 2021 Regulations still applies to the Veteran’s lumbar and cervical spine claims. Thus, the Board finds that the application of the criteria set forth in Diagnostic Codes 5242 and 5243 under either the prior or the 2021 Regulations does not modify the Board’s analysis of the Veteran’s claim in any appreciable manner. See 38 C.F.R. § 4.71a (2021). As stated above, the Veteran’s low back disability, has been evaluated under Diagnostic Code 5242 as 20 percent disabling from December 1, 2007, and in his application for an increased rating submitted on August 12, 2014, the Veteran contends that the severity of his service-connected low back disability warrants an increased evaluation in excess of 20 percent. However, after careful consideration of the evidence of record, the Board finds that an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability is not warranted in this case, as a preponderance of the evidence of record demonstrates that for the entire period on appeal, the Veteran’s service-connected low back disability has manifested pain, forward flexion of the thoracolumbar spine limited at most to 45 degrees, and a combined range of motion of the thoracolumbar spine of 130 degrees, without evidence of the following: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire spine; or IVDS resulting in incapacitating episodes during the past 12 months having a total duration of at least four weeks but less than six weeks. In March 2014, the Veteran was afforded a VA examination to evaluate the severity of his service-connected low back disability, which culminated in a report diagnosing the Veteran with degenerative joint disease (DJD) and further indicating that the Veteran’s low back disability manifested the following: daily back pain daily back pain aggravated by increased ambulation; forward flexion limited to 80 degrees, unchanged after three repetitions; a combined range of motion of the thoracolumbar spine of 230 degrees, unchanged after three repetitions; regular use of lumbar support brace for comfort; and functional loss to include less movement than normal. No evidence was noted of the following: IVDS; an altered gait; radiculopathy; an altered gait; bowel or bladder symptoms; ankylosis; guarding or muscle spasms; loss of muscle strength; muscle atrophy; abnormal reflexes; or abnormal sensory exam. The March 2014 VA examination report further notes that April 2011 x-rays reveal arthritis at L5 and possibly L4, minimal lumbar spondylosis, and a slight dextroconvex curvature of the lumbar spine. In January 2016, the Veteran was afforded a second VA examination to evaluate the severity of his service-connected low back disability, which culminated in a report diagnosing the Veteran with degenerative arthritis and disc disease (DDD) and further indicating that the Veteran’s low back disability manifested the following symptoms: chronic back pain that is “getting worse all the time,” and described as throbbing, tightening and occasionally sharp, measured as a 7 or an 8-9 on a scale of 1 to 10; flareups with sitting or standing for prolonged periods of time or with bending; forward flexion limited to 45 degrees, unchanged after three repetitions; a combined range of motion of the thoracolumbar spine of 225 degrees, unchanged after three repetitions; use of a lumbar support brace with activity; pain noted on examination on all ranges of motion that does not result in functional loss; no evidence of pain with weight bearing; and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the mid-lumbar spine. No evidence was noted of the following: IVDS; an altered gait; radiculopathy; bowel or bladder symptoms; ankylosis; guarding or muscle spasms; loss of muscle strength; muscle atrophy; abnormal reflexes; or abnormal sensory exam. The March 2014 VA examination report further notes that April 2011 x-rays reveal arthritis at L4 and L5. In February 2020, the Veteran submitted a private medical report of Dr. S (the February 2020 Report) evaluating the severity of his service-connected low back disability and diagnosing the Veteran with mechanical back pain syndrome, DDD, and IVDS, and further indicating that the Veteran’s low back disability manifested the following symptoms: severe low back pain, both central and bilateral, which has worsened for years; severe stiffness; severe pain upon movement and moving from sitting to standing; bilateral hip pain; muscle spasms; sacrolitis; flareups with sitting, standing, lying down, and movements, described as 7 on a scale of 1 to 10; forward flexion limited to 60 degrees; a combined range of motion of the thoracolumbar spine of 130 degrees; localized tenderness and pain at the L4 level spreading down and lateral upon touch; an abnormal gait; muscle spasms; guarding; upon examination, a right low hip and severe loss of lumbar curve above 90 percent; abnormal spinal contour due to muscle spasm, guarding, and low right hip upon examination; contributing factors of disability including excess fatigability; pain on movement; swelling; disturbance of locomotion interference with sitting; and interference with standing; stiffness and pain upon twisting, dressing, and other maneuvers; functional loss during flareups to include irritation of nerve and muscle swelling which can be greatly affected by sitting (short and long term), standing (short and long term) and movement such as walking; a sensory examination with light palpation and moderate pressure eliciting flinching; and IVDS with incapacitating episodes with a total duration of all episodes over past 12 months of at least one week but fewer than two weeks. No evidence was noted of the following: paresthesias; numbness; bowel or bladder symptoms; ankylosis; loss of muscle strength; muscle atrophy; or abnormal reflexes. The February 2020 Report further noted that February 2020 x-rays revealed severe DDD at L4 with extreme spurs (osteoarthritis) noted. In August 2020, the Veteran was afforded a third VA examination to evaluate the severity of his service-connected low back disability, which culminated in a report diagnosing the Veteran with degenerative arthritis of the lumbar spine, IVDS, and radiculopathy of the left lower extremity. The August 2020 VA examination report further indicated that the Veteran’s low back disability manifested the following symptoms: pain described as spasms, tightness, and sharp, which has continued to worsen over time; daily flareups with pain described as a 6 or a 7 on a scale of 1 to 10; functional loss which prevents him from jogging, bending, performing repetitive maneuvers, and from participating in any sport activity or workout; initial forward flexion limited to 75 degrees and further reduced to 70 degrees after three repetitions; an initial combined range of motion of the thoracolumbar spine of 225 degrees, and further reduced to 190 degrees after three repetitions; during flareups, an estimated forward flexion limited to 65 degrees and estimated combined range of motion of 160 degrees; occasional use of a lumbar support brace; guarding and muscle spasm that does not result in abnormal gait or abnormal spinal contour; pain noted on examination and causing functional loss with all ranges of motion; evidence of pain with weight bearing; pain significantly limits functional ability with repeated use over a period of time; radiculopathy of the left lower extremity manifesting mild intermittent pain; and IVDS with no incapacitating episodes. No evidence was noted of the following: objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine; additional loss of function or range of motion after three repetitions; bowel or bladder symptoms; ankylosis; guarding or muscle spasms; loss of muscle strength; muscle atrophy; abnormal reflexes; or abnormal sensory exam. After careful review, and in consideration of the foregoing evidence, the Board hereby finds that for the entire period on appeal, the severity of the Veteran’s service-connected low back disability does not warrant an increased evaluation in excess of 20 percent under Diagnostic Code 5242, as the evidence of record does not suggest, and the Veteran does not contend, that his low back disability manifests forward flexion of the thoracolumbar spine 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. Rather, as outlined above, examinations of the Veteran’s thoracolumbar spine have consistently reflected that the Veteran has flexion of at least 45 degrees, even when factoring in pain and flare-ups and the results of repetitive testing. Nor has the Veteran ever been noted to require bed rest prescribed by a physician for at least two weeks during the past 12 months due to incapacitating episodes of IVDS. The Board has also considered whether the Veteran’s service-connected low back disability warrants a higher disability rating due to functional loss caused by pain, weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 205-07. However, the current evaluations for the Veteran’s service-connected low back disability under Diagnostic Codes 5242 and 5243 contemplate the impact of any complaints of pain, fatigue, swelling, weakness, or lack of endurance, and none of the VA examination reports found limitation of forward flexion limited to less than 30 degrees. Thus, even considering the effect of pain, flareups, and repetitive motion, the Veteran’s low back functional limitation has never been found to manifest forward flexion limited to 30 degrees or favorable or unfavorable ankylosis. Accordingly, the consideration of other functional limitation factors does not warrant evaluations in excess of the 20 percent evaluation currently assigned under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 205-07. The Board notes that the Veteran has been awarded a separate evaluation of 10 percent under Diagnostic Code 8720 for radiculopathy of the left sciatic nerve associated with the Veteran’s service-connected low back disability, effective August 12, 2013. Moreover, the Board further finds that, for the period beginning February 17, 2020, an evaluation of 10 percent under Diagnostic Code 8720 for the radiculopathy of the right sciatic nerve, associated with the Veteran’s service-connected low back disability, is warranted based upon the Veteran’s reports to Dr. S of radiating pain to the bilateral extremities. Prior to February 17, 2020, abnormal muscle strength, reflexes or sensory examination to warrant a separate rating for the right lower extremity. Resolving doubt in the Veteran’s favor, in light of the February 2020 report of radiating pain, a separate evaluation is warranted. However, an evaluation in excess of 10 percent under Diagnostic Code 8720 is not warranted in this case, as the Veteran’s reports of radiating pain into his right lower extremity indicate that such pain is mild in nature, rather than moderate or severe, as he did not report such pain to the August 2020 VA examiner just a few months later, and his left leg radiculopathy is noted to also be mild. Similarly, an evaluation in excess of 10 percent under Diagnostic Code 8720 is not warranted as the Veteran’s reports of radiating pain into his left lower extremity indicate that such pain is mild in nature, rather than moderate or severe. See 38 C.F.R. §§ 4.71a, 4.124a (2020). In addition, because the evidence of record includes x-ray evidence establishing that the Veteran’s low back disability manifests degenerative arthritis, the Board has also considered whether the Veteran’s low back disability is entitled to an increased evaluation under Diagnostic Code 5003-5242. In this case, however, the Veteran’s condition is rated upon limitation of motion of the affected joint and therefore a separate rating under Diagnostic Code 5003 is not warranted. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62. Finally, the Board has considered whether the Veteran is also entitled to a separate evaluation for either bowel or bladder disabilities as secondary to his service-connected low back disability. However, as the record contains no evidence that the Veteran has reported any bowel or bladder abnormalities associated with his low back disability, the Board finds that a preponderance of the evidence of record weighs against a finding that separate evaluations for bowel or bladder symptoms are warranted in this case. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Accordingly, and in consideration of the foregoing evidence, the Board hereby finds that for the entire period on appeal, the preponderance of the evidence of record weighs against the award of an evaluation in excess of 20 percent for the Veteran’s service-connected low back disability under Diagnostic Code 5242, as the Veteran’s low back disability does not more closely approximate the criteria required for a 40 percent evaluation. Accordingly, because the preponderance of the evidence weighs against the award of any additional increased evaluations, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. For the period on appeal prior to August 11, 2020, an increased evaluation in excess of 10 percent for the Veteran’s service-connected neck disability, to include cervical displacement and degenerative disc disease (DDD), is denied. 4. For the period on appeal from August 11, 2020, an increased evaluation in excess of 20 percent for the Veteran’s service-connected neck disability, to include cervical displacement and degenerative disc disease (DDD), is denied. The Veteran has been awarded the following disability ratings for his service-connected neck disability under Diagnostic Code 5242: (1) a 10 percent evaluation from August 12, 2013, to August 10, 2020; and (2) a 20 percent evaluation from August 11, 2020. In addition, the Veteran has also been awarded a 10 percent evaluation under Diagnostic Code 8518, effective December 1, 2007, for his mild radiculopathy of the upper left extremity, to include as secondary to his service-connected neck disability. The Veteran contends that the severity of his service-connected neck disability warrants an increased evaluation in excess of those currently awarded; however, for the reasons set forth below, the Board finds that a preponderance of the evidence of record weighs against a finding that any increased evaluations pertaining to the Veteran’s service-connected neck disability are warranted in this case. In March 2014, the Veteran was afforded a VA examination to evaluate his service-connected neck disability, which culminated in a report diagnosing cervical DDD and indicating the following symptoms: daily neck pain aggravated by prolonged driving; forward flexion limited to 45 degrees, unchanged after three repetitions; a combined range of motion of the cervical spine of 290 degrees, unchanged after three repetitions; pain noted with movement and causing less movement than normal; localized tenderness or pain to palpation for joints/soft tissue of the cervical spine; and x-rays documenting multilevel osteoarthritis, cervical spondylosis, and mild levoconvex scoliosis of the upper thoracic and lower cervical spine. No evidence was noted of the following: radiculopathy symptoms; bowel or bladder symptoms; use of assistive devices; ankylosis; guarding or muscle spasms; loss of muscle strength; muscle atrophy; abnormal reflexes; abnormal sensory exam; or impact on ability to work. The March 2014 VA examination report further noted that the examiner found it “impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the neck is used repeatedly over a period of time.” In February 2020, the Veteran submitted a private medical report of Dr. S (the February 2020 Report) evaluating the severity of his service-connected neck disability and diagnosing the Veteran with mechanical cervical pain syndrome, DDD, subluxation of C-5, and IVDS. The February 2020 Report further indicated that the Veteran’s service-connected neck disability manifests the following symptoms: severe bouts of cervical pain; left side cervical pain and muscle spasms which travel to the upper back, shoulder blade, and shoulder area all on the left side; flareups described as light or heavy physical stress shooting from neck to back and shoulder blade, as well as any movements of the cervical region, including sleeping, which can exacerbate symptoms; functional loss consisting of pain on movement, swelling, and muscle spasms that continue after stress and can affect daily function and sleep; initial forward flexion limited to 40 degrees; an initial combined range of motion of the cervical spine of 265 degrees; localized tenderness/pain on palpation, which can be severe (7/10) and very tender on the left side of the cervical region to the upper and middle back; guarding; muscle spasms; abnormal gait due to guarding; inability to move neck without slow and wincing pain; abnormal spinal contour due to left high shoulder; irritation of the nerve at the spinal level which can cause joint swelling resulting in pain from simple stress; tenderness upon light palpation and moderate pressure in lower cervical and upper thoracic spine; radicular pain in the lower cervical region (C-5) to upper neck and upper thoracic spasm (T-2) to middle back and left; IVDS with episodes of less than one week in the past 12 months; a popping noise with pain in the cervical region; and tingling and throbbing in the neck and on the left side thoracic. The February 2020 Report further noted that x-rays were positive for multiple levels of DDD and osteoarthritis in the cervical spine (C-3 to C-6) but found no evidence of the following: ankylosis, abnormal muscle strength, or muscle atrophy. In August 2020, the Veteran was afforded a second VA examination which culminated in a report diagnosing degenerative arthritis, degenerative joint disease of the cervical spine with cervical disc displacement, and IVDS. The August 2020 VA examination report further indicated that the Veteran’s service-connected neck disability manifests the following symptoms: increased pain in the upper back and neck region; stiffness; difficulty rotating his head; “very painful” flareups on a daily basis which sometimes move down the left arm, described as a 6-7 on a scale of 1 to 10, and which are alleviated with rest and stretching; functional loss causing the inability to drive for long periods of time or turn the neck when driving; difficulty sleeping; forward flexion limited to 40 degrees, unchanged after three repetitions; a combined range of motion of the cervical spine of 275 degrees, unchanged after three repetitions; pain significantly limiting functional ability with repeated use over a period of time; pain significantly limiting functional ability with flareups, described in terms of range of motion as forward flexion limited to 30 degrees, and a combined range of motion of the cervical spine limited to 220 degrees; pain noted on examination and causing functional loss on all ranges of motion; evidence of pain with weight bearing; objective evidence of pain when the spine is non-weight bearing; difficulty with certain maneuvers that may require movement of the neck such as checking blind spot when driving; left upper radiculopathy symptoms involving the C5, C6, and C7 nerve roots and consisting of mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness; x-rays indicating arthritis, but no fracture with loss of 50 percent or more of height; and impact on the Veteran’s ability to work as he cannot sit for extended periods of time and sometimes has to stand up for 15 minutes at a time to help alleviate pain. The August 2020 VA examination report further found no evidence of the following: objective evidence of localized tenderness; pain on palpation of the joint or associated soft tissue of the cervical spine; localized tenderness, guarding or muscle spasm of the neck; additional contributing factors of disability; use of assistive devices; abnormal muscle strength; muscle atrophy; abnormal reflexes; abnormal sensory exam; ankylosis; other neurological abnormalities related to the neck condition; or episodes of acute signs and symptoms due to IVDS requiring bed rest prescribed by physician and treatment by physician in the past 12 months. In light of the foregoing, and after careful review, the Board finds that the preponderance of the evidence of record weighs against a finding that increased evaluations are warranted for either period on appeal for the Veteran’s service-connected neck disability. For the period on appeal prior to August 11, 2020, the Board finds that the Veteran’s service-connected neck disability does not warrant an increased evaluation in excess of 10 percent, as the Veteran’s neck disability manifested forward flexion of the cervical spine limited to no less than 40 degrees, and a combined range of motion of the cervical spine limited no less than 265 degrees. Moreover, at no time during the period on appeal prior to August 11, 2020, did the Veteran’s neck disability manifest forward flexion of the cervical spine limited to less than 30 degrees, a combined range of motion of the cervical spine limited to less than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In addition, for the period on appeal from August 11, 2020, the Board finds that the Veteran’s service-connected neck disability does not warrant an increased evaluation in excess of 20 percent, as the Veteran’s neck disability manifested forward flexion limited to 30 degrees, and a combined range of motion of the cervical spine limited to 220 degrees. Moreover, at no time during the period on appeal from August 11, 2020, did the Veteran’s neck disability manifest forward flexion of the cervical spine limited to15 degrees or favorable ankylosis of the entire cervical spine. The Board has also considered whether the provisions of 38 C.F.R. §§ 4.40, 4.45 pertaining to functional impairment must be applied in order to determine whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca, 8 Vet. App. at 205-07. However, in this case, consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45 and accompanying case law is not required, as any finding of pain on motion could not result in a higher rating because the Board has awarded the Veteran the maximum schedular rating under Diagnostic Code 5242 absent evidence of the following: (a) for the period on appeal prior to August 11, 2020, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and (b) for the period on appeal from August 11, 2020, forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has also considered whether the Veteran’s service-connected neck disability warrants the assignment of an additional or a higher rating under other diagnostic codes at any point during the period on appeal, see Schafrath, 1 Vet. App. at 595, and the Board notes that the Veteran has been awarded a separate evaluation of 10 percent for mild radiculopathy of the left upper extremity as secondary to his service-connected neck disability. However, because the record contains no evidence of IVDS episodes requiring bed rest prescribed by a physician, or of any other objective neurologic abnormalities, such as bowel or bladder impairment, the Board finds that no additional disability ratings are warranted in this case. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). Accordingly, in consideration of the foregoing evidence, the Board finds that, for the period on appeal prior to August 11, 2020, the preponderance of the evidence of record weighs against an award of a disability rating in excess of 10 percent under Diagnostic Code 5242 for the Veteran’s service-connected neck disability, and for the period on appeal from August 11, 2020, the preponderance of the evidence of record also weighs against an award of an evaluation in excess of 20 percent under Diagnostic Code 5242 for the Veteran’s service-connected neck disability. Accordingly, because the preponderance of the evidence weighs against the award of any additional increased evaluations, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.