Citation Nr: 21010758 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-44 274 DATE: February 25, 2021 ORDER Service connection for breathing problems, claimed as sinusitis and rhinitis, is denied. An initial disability rating in excess of 10 percent for a service-connected right ankle sprain is denied. An initial disability rating in excess of 10 percent for a service-connected back condition (lumbar strain) is denied. FINDINGS OF FACT 1. The Veteran’s sinusitis and rhinitis are unrelated to service, and the Veteran does not have another diagnosed respiratory condition. 2. The Veteran’s service-connected right ankle sprain is manifested by an overall disability picture more nearly approximating moderate, but not marked, limitation of motion due to pain. 3. The Veteran’s service-connected lumbar strain has not been manifested by forward flexion of the thoracolumbar spine less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for breathing problems, claimed as sinusitis and rhinitis, have not been met. 38U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for a service-connected right ankle sprain have not been met. 38U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5271 (2020 and 2021). 3. The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5237 (2020 and 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to December 2013. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 Regional Office (RO) rating decision. In June 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. In November 2019, the Board remanded the issues on appeal for additional development of the record. 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, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 1. Entitlement to service connection for breathing problems, to include sinusitis and rhinitis The Veteran contends that his breathing problems, to include sinusitis and rhinitis, are related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Upon review of the evidence of record, the Board finds that the claim for service connection for breathing problems, to include sinusitis and rhinitis, must be denied. Service treatment records (STRs) indicate that he was a smoker during service and that x-rays were suspicious for active tuberculosis. However, a radiologic examination report revealed that the impression was a normal chest. The records indicate that the Veteran received treatment for a latent tuberculosis infection. The Veteran underwent a VA examination in April 2014 for respiratory conditions. The examination report indicates that the Veteran did not have a diagnosed respiratory condition. The examiner’s rationale was that examination was within normal limits, and there was no objective evidence to render a diagnosis. The examiner also noted that the Veteran denied a respiratory condition, did not report shortness of breath, and had not been treated for any respiratory conditions. The Veteran reported loud snoring and intermittent stopping of breathing since 2009 when he was in service, and the examiner stated that, based on the Veteran’s symptoms, he appeared to have obstructive sleep apnea. The objective findings upon physical examination showed that his lungs were clear without wheezing, rales, or rhonchi; heart regular rate and rhythm without murmurs, gallops, or rubs; normal nose, mouth and pharynx examination. During the June 2019 hearing, the Veteran testified that he has a sinus allergy that began in service, noting that he saw a doctor during service. He testified that he did not have this condition prior to service. In December 2019, the Veteran underwent a VA examination for sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx. The disability benefits questionnaire (DBQ) shows that the examiner noted diagnoses of chronic sinusitis and allergic rhinitis from 2009 but stated that the exact date of onset is unknown. The examiner noted that the Veteran complained of chronic sinusitis and rhinitis and reported that they began in service, continuing to the present. Current symptoms were noted as irritation around the nasal passages, especially when the weather is cold and that during allergy season it worsens. The Veteran reported no symptoms when the weather is warm. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no record of any breathing problems during service and examination was unremarkable. Thus, the examiner opined that chronic sinusitis and allergic rhinitis are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also noted that respiratory conditions could not be confirmed because the Veteran did not attend the chest x-ray or PFT scheduled for December 2019; therefore, no respiratory diagnosis was warranted. The examiner stated that they did not find any record or complaint of a breathing problem in STRS and examination was absent for a respiratory condition. Medical treatment records since service do not indicate complaints of or treatment for a respiratory condition, rhinitis, or sinusitis. VA treatment records show that examination of the lungs revealed that they were clear to auscultation, bilaterally. Although the STRs indicate that he was a smoker during service and was treated for a latent tuberculosis infection; testing showed that the Veteran had a normal chest during service. The current evidence does not demonstrate that the Veteran has a current diagnosis of a respiratory condition and that his diagnosed sinusitis and rhinitis are not related to service. While the Veteran is competent to state the symptoms he experiences, he lacks the medical expertise to render a diagnosis or provide a nexus to service with respect to this condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this respect, the most competent and probative evidence with regard to his claimed condition are the VA examinations, indicating that the Veteran does not have a diagnosed respiratory condition and that his diagnosed sinusitis and rhinitis are not related to active service. In essence, the examiner acknowledged the Veteran’s report of the onset of certain symptoms; however, the opinion clarifies that the onset of any chronic rhinitis or sinusitis is not clear. Additionally, treatment records since service do not indicate treatment, complaints, or symptoms for his claimed condition. Accordingly, service connection for a respiratory condition, to include sinusitis and rhinitis, must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007); Brammer v. Derwinski, 3 Vet. App. 223 (1995). For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for a respiratory condition, to include sinusitis and rhinitis. The benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of a disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.21. 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). 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, 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. The regulations of the musculoskeletal system were recently amended, effective February 7, 2021. Where a law or regulation changes during the pendency of a claim for increased rating, the amendments cannot be construed to have retroactive effect unless the language requires such a result. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). There is no such language in the amendments to the regulations at issue in this case. Consequently, the Board has considered whether an increased evaluation may be warranted under either the old or new version of the schedule for rating disabilities of the spine; but application of the newer regulations can be no earlier than the effective date of the change. 2. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right ankle sprain The Veteran contends that his service-connected right ankle sprain warrants a disability rating higher than currently assigned. The Veteran’s service-connected right ankle sprain is currently rated as 10 percent disabling from December 8, 2013 under DC 5271. The regulations for evaluating musculoskeletal disabilities were amended, effective from February 7, 2021. Prior to February 7, 2021, DC 5271 provides a 10 percent disability rating for moderate limitation of motion of the ankle and a 20 percent disability rating for marked limitation of motion of the ankle. The words “moderate” or “marked” are not defined in the VA Schedule prior to February 7, 2021. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, Diagnostic Code 5271 provides definitions for “moderate” and “marked” and a 10 percent disability rating for moderate limitation of motion of the ankle is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent disability rating for marked limitation of motion of the ankle is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Normal or full range of motion for the ankle is dorsiflexion (extension) from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in April 2014. The examination report shows a diagnosis of right ankle sprain from 2013, treated with an ankle brace. It indicates abnormal lower extremities, noting mild swelling and tender over right lateral ankle. The examiner noted intermittent, mild, dull pain over the right ankle, and that the Veteran did not report flare-ups impacting the function of the ankle. Range of motion (ROM) testing was normal, but the examiner noted pain on active, passive, weight-bearing, non-weight bearing, and/or repetitive use testing. The examiner noted localized tenderness or pain on the lateral malleolus, of mild severity, due to observed swelling and caused by sprain/strain. The examiner noted pain on movement and swelling but stated that those factors are not associated with limitation of motion. The report indicates no ankylosis, muscle atrophy, instability, or dislocation, and muscle strength testing was normal. The examiner noted that the Veteran regularly used a brace for right ankle pain and was restricted from prolonged running or heavy lifting. A May 2014 x-ray of the ankle revealed no significant abnormality, and a June 2014 diagnostic test addendum revealed no change to the April 2014 ankle DBQ or medical opinion. VA treatment records reveal treatment and complaints for ankle joint pain and chronic ankle pain. In a July 2014 VA treatment record, it indicates that the right ankle pain was localized to lateral malleolus, aggravated with plantar flexion, inversion, and eversion of the right foot, rated as a 5 out of 10 on pain scale, non-radiating. It indicates that the Veteran only uses ice compresses when pain flares up, and that the pain had gotten worse over the past week. The Veteran was noted as very active, participating in various sports but that driving using his right foot on the gas pedal and brake increased pain. In a March 2015 VA treatment record, it shows that right ankle pain was still present with hill walking or prolonged running but with mild symptoms, and the Veteran reported that he feels it is better. No other concerns related to his ankle were noted. In the December 2016 VA 646 statement, the Veteran, through his representative, stated that his condition causes “so much pain on a daily basis.” During the June 2019 Board hearing, the Veteran testified that his ankle condition has affected his work, and that the pain is worse than it was previously. He stated that he generally has more pain and that it is painful when he walks. The Veteran testified that his work requires that he is on his feet all day long. The transcript indicates that the Veteran works part time, with varying schedules each week, varying between two and four hours a day. The Veteran testified that he can flex his ankle, but it is painful when he flexes it fast. In the December 2019 ankle conditions DBQ, the examiner noted a diagnosis of right ankle sprain from 2013. The examiner noted that the Veteran has pain and difficulty driving a car and pushing the gas pedal, and that he treats his ankle with ice and over-the-counter medication. The DBQ shows that the Veteran reported flare-ups of the ankle, described as increased pain and inability to perform prolonged standing and walking. ROM testing of the right ankle revealed dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 40 degrees, with no pain noted, and the examiner noted that the ROM itself does not contribute to a functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions, and that there was no additional loss of function or ROM. The examiner noted that the examination was not conducted during a flare-up but that pain during a flare-up significantly limits functional ability but noted no other contributing factors of disability. The examiner found no objective evidence of pain on non-weight or weight bearing, no crepitus, no muscle atrophy, no ankylosis, passive ROM was the same as active ROM, and muscle strength testing was normal. The examiner noted that ankle instability or dislocation was not suspected, and the Veteran does not use any assistive devices. The examiner stated that the severity of his right ankle sprain is moderate, and that the objective evidence of the severity is the loss of initial ROM. Having considered the evidence of record under the rating criteria outline above, the Board finds that an evaluation greater than 10 percent is not warranted for the Veteran’s right ankle sprain at any time during the period on appeal. Based on the regulations prior to and since February 7, 2021, a 20 percent rating is not warranted. The record, including the VA examination reports, establishes that the Veteran’s right ankle sprain has not resulted in marked limitation of motion of the ankle, required for the next higher rating. The medical evidence of record does not show limitation of motion of his ankle of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, as defined in the updated regulations listed above. Instead the evidence shows that the Veteran experiences limitation of motion of the ankle due to pain, contemplated by the current 10 percent rating. The Veteran is competent to report observable symptoms such as pain, swelling, and stiffness; however, the competent medical evidence does not show that the Veteran’s reports of pain result in marked limitation of motion of the ankle required for a 20 percent disability rating under DC 5271 prior to or since the February 7, 2021 regulation update. As such, the Veteran’s overall disability picture regarding his right ankle sprain is contemplated by the currently assigned 10 percent rating under DC 5271. DC 5270, which evaluates ankylosis of the ankle, provides a rating in excess of 20 percent. However, the competent medical evidence of record does not indicate that the Veteran has ankylosis of the right ankle, and the Veteran has not submitted any evidence to show otherwise. Therefore, a disability rating under DC 5270 for the Veteran’s right ankle is not available. In sum, the Board finds the preponderance of the evidence weighs against a finding that the Veteran’s right ankle sprain more closely approximates marked limitation of motion of the ankle, required for a rating in excess of 10 percent under DC 5271. As such, a rating in excess of 10 percent is not warranted. The benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an initial disability rating in excess of 10 percent for a service-connected back condition (lumbar strain) The Veteran contends that his service-connected lumbar strain warrants a disability rating higher than currently assigned. His service-connected lumbar strain is currently rated as 10 percent disabling from December 8, 2013 under DC 5237. Currently, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under DCs 5237 through 5243. 38 C.F.R. § 4.71a, DC 5243. In addition, IVDS, under DC 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula, 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 entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate DC. Id. Prior to February 7, 2021, under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An “incapacitating episode” under this formula is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” Id. at Note 1. The regulations for evaluating musculoskeletal disabilities were amended, effective from February 7, 2021. Prior to February 7, 2021, Diagnostic Code 5243 directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Effective February 7, 2021, Diagnostic Code 5243 directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root and assign diagnostic code 5242, which evaluated degenerative arthritis and degenerative disc disease other than IVDS, for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The criteria used under the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for IVDS Based on Incapacitating Episodes were not amended. The General Rating Formula provides a schedule of ratings for spine disabilities 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 an injury or disease. The Veteran underwent a VA examination in April 2014. The examination report shows a diagnosis of back pain with a date of onset as 2012, no treatment. The report indicates an abnormal spine, noting mild tender lumbar paraspinal region. Upon examination, the examiner found that the Veteran had full ROM with mild pain and noted mild tender over paraspinal region. The examiner noted functional loss and/or impairment, as pain on movement and interference with sitting, standing, and/or weight-bearing. The report shows that the Veteran has intermittent mild dull pain over his lower back, worsened with prolonged sitting and running, denied radiation pain. The Veteran did not report flare-ups. ROM testing revealed forward flexion to 90 or greater, with painful motion at 85, extension, right and left lateral flexion, and right and left lateral rotation each to 30 or greater with no pain. It indicates that the Veteran is able to perform repetitive-use testing with 3 repetitions, noting no decrease in ROM. The report reveals no guarding or muscle spasm of the thoracolumbar spine, no muscle atrophy, no radiculopathy or radicular pain or symptoms, no other neurologic abnormalities, and muscle strength testing was normal. The examiner noted that the Veteran does not have IVDS and does not use any assistive devices. A May 2014 x-ray of the lumbar spine revealed normal-appearing lumbar spine. A June 2014 diagnostic test addendum revealed no change to the previous DBQ and no change to the back diagnosis or medical opinion. In the December 2016 VA 646 statement, the Veteran, through his representative, stated that he “has so much pain on a daily basis.” During the June 2019 Board hearing, the Veteran testified that his back condition has affected his work, and that he cannot lift certain items for his job. The Veteran testified that when he is making sushi, it hurts his back because he stands for an extended amount of time, “for an hour or something like that.” He stated that after driving for an extended period of time, he has to rest for 15 minutes. In the December 2019 back condition DBQ, the examiner noted a diagnosis of lumbosacral strain from 2013 with current symptoms of localized pain, treated with over the counter medications. The Veteran reported flare-ups of the thoracolumbar spine, described as increased pain with activity sometimes. The Veteran reported an inability to sit or stand for long periods of time due to his back. Initial ROM testing revealed forward flexion to 70 degrees, extension, right and left lateral flexion, right and left lateral rotation, each to 25 degrees. The examiner noted that the ROM itself does not contribute to functional loss and found no pain on examination or objective evidence of localized tenderness or pain. The examination was not conducted during a flare-up, and the Veteran was able to perform repetitive-use testing, with no additional loss of function or ROM. The examiner stated that pain significantly limits functional ability with repeated use over a period of time as well as during flare-ups, noting the previous ROM findings. The examiner noted that the Veteran does not use any assistive devices, muscle strength, sensory, and reflex testing were normal and found no evidence of guarding or muscle spasm, no muscle atrophy, no radiculopathy, no ankylosis of the spine or any other neurologic abnormalities, and no IVDS. The examiner noted that the Veteran’s back condition impacts his ability to sit or stand for long periods of time and to lift heavy objects. The examiner found no objective evidence of pain on non-weight bearing or weight bearing, and that passive ROM was the same as active ROM. The examiner described the severity of the Veteran’s lumbosacral strain as moderate, based on ROM from recent examination. Based on the foregoing, the severity of the Veteran’s service-connected lumbar strain does not meet the criteria for a disability rating in excess of 10 percent under DC 5237. The April 2014 and December 2019 VA examination reports reveal forward flexion greater than 60 degrees and combined range of motion greater than 120 degrees. Thus, while the most recent examination shows a decrease in the Veteran’s ROM, it does not rise to the level required of the next higher, 20 percent disability rating under the General Rating Formula noted above. The Veteran’s forward flexion of the thoracolumbar spine has not been limited to 60 degrees, with combined range of motion less than 120 degrees, and the evidence does not show that the Veteran has muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Therefore, the Veteran’s service-connected lumbar strain does not demonstrate the limitation of motion required for the next higher 20 percent rating under DC 5237. The Board has considered whether the Veteran may be entitled to a higher rating for his lumbar strain based on additional functional loss due to pain. See, e.g., DeLuca, 8 Vet. App. at 202. However, the evidence does not show additional limitation due to pain rising to the level required for the next higher rating. The current 10 percent rating contemplates the effect of the Veteran’s pain on the ROM of his back. That is, with consideration of painful motion and other factors, forward flexion of the thoracolumbar spine below 60 degrees, or combined range of motion below 120 degrees, have not been more nearly approximated. Accordingly, based on the above, the overall disability picture does not more nearly approximate the criteria for the assignment of a disability rating in excess of 10 percent at any time during the period on appeal. As such, a rating in excess of 10 percent for the Veteran’s service-connected lumbar strain is not warranted. 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); 38 C.F.R. § 4.3. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.