Citation Nr: 21010278 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-11 004A DATE: February 24, 2021 ORDER A rating in excess of 10 percent for right knee ostearthritis with pain and limitation of motion in flexion is denied. A rating in excess of 10 percent for left knee ostearthritis with pain and limitation of motion in flexion is denied. A rating in excess of 10 percent for right knee ostearthritis with pain and limitation of motion in extension is denied. A rating in excess of 10 percent for left knee ostearthritis with pain and limitation of motion in extension is denied. A separate 10 percent rating, but no higher, for residuals of a right knee meniscectomy is granted. A separate 10 percent rating, but no higher, for residuals of a left knee meniscectomy is granted. A separate 10 percent rating, but no higher, for right knee instability is granted. A separate 10 percent rating, but no higher, for left knee instability is granted. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) prior to March 26, 2018 is denied. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the spine with IVDS beginning March 26, 2018 is denied. FINDINGS OF FACT 1. The Veteran’s right and left knee disabilities are manifested by painful limitation of motion with flexion, at worst, to 90 degrees with normal extension and without ankylosis. 2. The Veteran has symptomatic removal of the semilunar cartilage of both knees. 3. The Veteran’s right and left knee disabilities are manifested by no more than slight instability. 4. Prior to March 26, 2018, the Veteran’s degenerative arthritis of the spine with IVDS has not more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; he did not have incapacitating episodes of IVDS. 5. Beginning March 26, 2018, the Veteran’s degenerative arthritis of the spine with IVDS has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; he does not have incapacitating episodes of IVDS. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee ostearthritis with pain and limitation of motion in flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2020). 2. The criteria for a rating in excess of 10 percent for left knee ostearthritis with pain and limitation of motion in flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5260 (2020). 3. The criteria for a rating in excess of 10 percent for right knee ostearthritis with pain and limitation of motion in extension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5261 (2020). 4. The criteria for a rating in excess of 10 percent for left knee ostearthritis with pain and limitation of motion in extension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5261 (2020). 5. The criteria for a separate 10 percent rating for residuals of a right knee meniscectomy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5259 (2020). 6. The criteria for a separate 10 percent rating for residuals of a left knee meniscectomy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5259 (2020). 7. The criteria for a separate 10 percent rating, but no higher, for slight instability of the right knee are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). 8. The criteria for a separate 10 percent rating, but no higher, for slight instability of the left knee are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). 9. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the spine with IVDS prior to March 26, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 10. The criteria for entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the spine with IVDS beginning March 26, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marines from February 1989 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were last before the Board in January 2018 where they were remanded for additional development. Disability Ratings Laws and Regulations When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Right and Left Knee Disabilities The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003, 5010, and 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Prior to February 7, 2021, Diagnostic Code 5010 instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, and as noted above, revisions to Diagnostic Code 5257 were made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran’s appeal, both the former and revised criteria will be considered in evaluating the Veteran’s service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Right and Left Knee Limitation of Motion in Flexion and Extension The Veteran has already been awarded 10 percent ratings for painful limitation of motion in flexion for both the right and left knee. He has also been awarded separate 10 percent ratings for limitation of motion in extension for both knees. Upon review of the evidence of record, the Board finds that ratings in excess of 10 percent under DC 5260 (limitation of motion in flexion) and under DC 5261 (limitation of motion in extension) are not warranted. The evidence includes June 2015, June 2017, and March 2018 VA knee examination reports. At that time, the Veteran was found to have motion limited to, at worst, 90 degrees bilaterally, to include following repetitive use testing and during periods of flare-ups. Because the Veteran’s bilateral knee flexion, to include during repetitive-use testing, has been no worse than 90 degrees, a rating higher than 10 percent is not warranted for either knee under DC 5260. Further, as noted in the VA knee examination reports listed above, the Veteran has been able to fully extend both knees throughout the entire rating period on appeal; as such, a rating in excess of 10 percent under Diagnostic Code 5261 is also not warranted. The Board recognizes the Veteran’s reports of continued bilateral knee pain as explained in the VA examination report discussed above. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged walking and kneeling). However, even considering additional limitation of motion or function of the knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the right and left knee disabilities more nearly approximates the criteria for higher ratings. Repetitive-use testing during the VA examination discussed above showed no significant decreased range of motion in either knee. As such, even considering the Veteran’s complaints of pain and flare-ups, the Board finds that the severity of the Veteran’s right and left knee disabilities do not more nearly approximate higher ratings for either knee. For these reasons, ratings in excess of 10 percent for each knee under Diagnostic Code 5260 and 5261 are not warranted. Right and Left Knee Meniscectomy Residuals The Board next finds that the Veteran’s right and left knee residuals associated with his meniscectomies warrant separate 10 percent ratings under Diagnostic Code 5259. In this regard, the medical evidence shows that the Veteran had meniscectomies in in both knees prior to the increased rating period on appeal. During the June 2015 VA examination, the examiner specifically indicated that the Veteran had frequent episodes of joint locking and joint pain in both knees. The Veteran also has reported “constant feeling of pain and locking.” VA treatment records also show some joint effusion. See e.g., June 2017 VA treatment note. For these reasons, the Veteran’s right and left knee residuals associated with the meniscectomies warrant separate 10 percent ratings under Diagnostic Code 5259. A 10 percent rating is the maximum assignable under Diagnostic Code 5259 for post-operative cartilage removal, and as such higher ratings are not possible. Right and Left Knee Instability Based on review of the evidence, the Board finds that the Veteran’s right and left knee disabilities warrant separate 10 percent ratings for instability of the knee joints throughout the period on appeal. The Veteran has reported that his knees occasionally “gives out.” See August 2015 Notice of Disagreement; June 2014 VA examination. The Board notes that Diagnostic Code 5257 does not require objective medical evidence of instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported right knee instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability for the rating period on appeal. Next, the Board finds that the Veteran’s left knee instability is not more accurately described as moderate under the earlier diagnostic code effective prior to February 7, 2021. The medical records do not specifically describe instability of the knee joints and the VA examination reports during the current appeal period found that the right and left knee joint were normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight in nature. As it pertains to the rating period effective February 7, 2021, the Board has considered the rating criteria under the current diagnostic code. Effective February 7, 2021, Diagnostic Code 527 provides for a 20 percent rating for a knee sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 20 percent rating may also be assigned for patellar instability when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker In this case, the Board finds that ratings in excess of 10 percent for instability of the right and left knee disabilities are not warranted under the amended rating criteria effective February 7, 2021. In this regard, the Veteran has not been shown to have “persistent instability” as contemplated under the 20 percent rating criteria. As noted by the Veteran, he has described that his knees give way only occasionally. See August 2015 Notice of Disagreement; June 2014 VA examination. Moreover, the Veteran had not been found to have recurrent instability after surgical repair of a diagnosed patellofemoral condition. As such, ratings in excess of 10 percent under both the earlier and revised DC 5257 are not warranted. Thoracolumbar Spine Effective February 7, 2021, VA’s Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.   For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran’s claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects “Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)”; DC 5243 now reflects “Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses.” As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. The Veteran’s degenerative arthritis of the spine with IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Entitlement to service connection for degenerative arthritis of the spine with IVDS was granted in a May 2013 rating decision and a 10 percent disability rating was assigned, effective June 30, 2011. A May 2019 rating decision assigned a 20 percent disability rating, effective March 26, 2018. The Veteran contends that he is entitled to a higher rating because his disability is more severe than contemplated by the currently assigned rating. Spine Rating Prior to March 26, 2018 The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative arthritis of the spine with IVDS for the appeal period prior to March 26, 2018. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences daily flare ups during bending and walking would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Taken together, the June 2017, September 2015, and June 2014 VA examinations noted flexion, at worst, limited to 80 degrees with pain on flexion, but with no evidence of pain on weight bearing. The Veteran did have mild tenderness or pain on palpation of lower back. There was no additional limitation of motion on repetition. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. Strength testing was normal. There was tenderness resulting in abnormal gait or abnormal spine contour. There were no signs of ankylosis. Additionally, at worst, the Veteran was found to occasionally use a brace and regularly use a cane. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; see also June 2017 VA examination (noting no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months). For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to March 26, 2018 for degenerative arthritis of the spine with IVDS. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Spine Rating Beginning March 26, 2018 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for degenerative arthritis of the spine with IVDS for the rating period beginning March 26, 2018. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during repetitive use over time and that he sometimes needs to use a walker. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that it “feels like a big rock stuck in his back” with tightening and a lot of swelling that makes him unable to walk and, if bent at the waist, he can get stuck in that position, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. At worst, the Veteran’s forward flexion was 60 degrees. See March 2018 VA examination. Additionally, pain was noted on forward flexion and extension with no evidence of pain on weight bearing. There was no additional limitation of motion on repetition. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was additional limitation of motion due to pain with flare-ups that resulted in forward flexion of 40 degrees. Strength testing was normal. There was no tenderness resulting in abnormal gait or abnormal spine contour. There was no muscle atrophy, deep tendon reflexes were normal, sensory exam was normal, and straight leg raise test was negative. There were no signs of no ankylosis. The VA examiner noted that the Veteran did not use any assistive device, even though the Veteran stated that he used a cane and a walker. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; see also March 2018 VA examination (noting no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months). Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent beginning March 26, 2018 for degenerative arthritis of the spine with IVDS. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As addressed in the Board’s January 2018 decision, the Veteran withdrew his claims for increased ratings for right and left lower extremity sciatica. See Veteran’s August 2017 statement. As such, these issues will not be addressed at this time. The Board further notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the Veteran is already in receipt of TDIU for his service-connected disabilities for the entire rating period on appeal; therefore, no further discussion is warranted. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, Associate 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.