Citation Nr: 21011772 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-13 976 DATE: March 2, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for ulcers secondary to medication taken for service-connected conditions (most notably, a back disability and fibromyalgia) is denied. Entitlement to a rating higher than 30 percent for sinusitis is denied. Entitlement to an initial rating higher than 20 percent prior to March 31, 2009, and a rating higher than 40 percent since, for degenerative disc disease of the lumbar spine (back disability) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s allergic rhinitis (i.e., seasonal allergies) began during his active military service or are otherwise related or attributable to his service. 2. His ulcers also are not caused or aggravated by any of his service-connected disabilities and not otherwise related or attributable to his service. 3. Because of his sinusitis, he has more than six non-incapacitating episodes per year of this disease characterized by headaches, pain and purulent discharge or crusting. 4. Prior to March 31, 2009, the degenerative disc disease of his lumbar spine did not result in forward flexion limited to 30 degrees or less or favorable ankylosis of his entire thoracolumbar (thoracic and lumbar) spine. 5. Since March 31, 2009, the forward flexion of his thoracolumbar spine has been functionally limited to less than 30 degrees, but without unfavorable ankylosis of his entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for allergic rhinitis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria are not met for entitlement to service connection for ulcers, including as secondary to service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria are not met for entitlement to a rating higher than 30 percent for sinusitis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.27, 4.97, Diagnostic Code (DC) 6513. 4. The criteria are not met for entitlement to an initial rating higher than 20 percent prior to March 31, 2009 or for a rating higher than 40 percent since for degenerative disc disease of the lumbar spine. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5237-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1974 to April 1980 and in the United States Army from May 1982 to February 1997. This appeal to the Board of Veterans’ Appeals (Board) is from December 2006, March 2007, April 2008, and August 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran testified in support of these claims during a hearing at the RO before a Veterans Law Judge of the Board (Travel Board Hearing), and a transcript of that hearing is of record. In September 2011, the Board remanded these claims back to the RO for further development and consideration. In May 2016, the Board sent the Veteran a letter explaining that the Veterans Law Judge who had presided over his hearing was unavailable to participate in the decision on his appeal. So, he was given opportunity to have another hearing before a different Veterans Law Judge of the Board since the law requires that the Veterans Law Judge who conducts a hearing on an appeal participate in any decision made on that appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The letter also explained, however, that, if he elected not to have another hearing, the case would be reassigned to another judge. In June 2016, he responded that he did not want another hearing. The Board again remanded these claims in December 2018 for still more development and consideration, and there since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board is proceeding to adjudicating these claims. VA's Duties to Notify and Assist It is first worth pointing out that the Veteran has not raised any issues with the duty to notify or assist him in fully developing his claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to "search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). However, that said, the Board nonetheless will discuss one salient aspect of the duty to assist in this case. See generally 38 U.S.C. § 5103A. Pursuant to the instructions of the more recent December 2018 Board remand, the RO (i.e., Agency of Original Jurisdiction (AOJ)) ordered VA examinations to assist in deciding the Veteran’s claims for service connection for his allergic rhinitis and ulcers as well as his claims for higher (i.e., increased) ratings for his sinusitis and degenerative disc disease of his lumbar spine. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). However, he could not be reached to schedule the examinations. The consequences in this circumstance depend on whether the examination was scheduled in response to an initial claim – so for service connection but also for a higher initial rating when the initial rating was appealed following the granting of service connection for the disability or, instead, a claim for increased compensation (increased rating) for an already established disability. A service connection claim or an initial rating claim is classified as an original compensation claim according to 38 C.F.R. § 3.655(b). See also Turk v. Peake, 21 Vet. App. 565 (2008). In this case at hand, the Veteran filed his initial claim for service connection in August 2006 for his back and allergic rhinitis. He also filed an increased rating claim at that time for his sinusitis. His initial claim for service connection for his ulcers was later filed in December 2008. The AOJ responded by issuing a December 2006 rating decision granting an increased rating for his sinusitis but conversely denying service connection for his allergic rhinitis. An April 2008 rating decision granted service connection for his back condition, but he was denied service connection for his ulcers in an August 2009 rating decision. The Veteran appealed the initial rating of his back disability and the denials of service connection for his ulcers and allergic rhinitis. Thus, these appeals arise from his original compensation claims for his back, allergic rhinitis and ulcers. According to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Section 3.655 also specifies that, if this instead occurs concerning a claim for an increased rating (so a claim that is not an original compensation claim), the claim shall be summarily denied, therefore leaving no discretion in this other circumstance. The claims file includes documents regarding the Veteran's failure to report for his examinations. There was a December 2018 Board decision on some other claims but, instead, a remand of these remaining claims concerning his back disability, ulcer, sinusitis and allergic rhinitis so he could be scheduled for needed examinations concerning these remaining claims. A January 9, 2020 exam scheduling request mailed to his most recent address of record informed him that an examination had been requested and notified him that, if he failed without good cause to report for the examination, the claim would be rated based on the evidence of record or even denied. A January 2020 Exam Scheduling Request Contention Cancellation and a January 2020 Supplemental Statement of the Case (SSOC) mailed to his most recent address of record indicate the medical examination ordered by the Board’s decision (remand) was unable to be scheduled because it was not possible to contact him to schedule the examination. Moreover, a November 2020 Post-Remand Brief filed by the Veteran’s representative, Veterans of Foreign Wars of the United States (VFW), acknowledges the VA medical examination was ordered but that the contractor was unable to contact the Veteran to schedule it. In this regard, the Board is relying upon the presumption of administrative regularity in finding that the Veteran was properly notified of the attempts to schedule his VA examination. The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the AOJ's mailing of notice of a VA medical examination. Jones v. West, 12 Vet. App. 98, 100-02 (1998). But for this presumption to attach, VA must provide notice to the latest address of record for the claimant. Crain v. Principi, 17 Vet. App. 182, 186 (2003). In addition, according to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q). This presumption of regularity is not absolute and may be rebutted with "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Crain, 17 Vet. App. at 186. However, an appellant's bare statement of non-receipt of mail, without more, is not the type of "clear evidence" that can rebut the presumption of regularity. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001). The Veteran has not asserted that his failure to comply with attempts to schedule his VA examination was due to a lack of notice. There is no evidence of returned mail by the U. S. Postal Service. There is no evidence an incorrect or misspelled address was used. VA correspondence was sent to him at the same home address and no mail was returned as undeliverable. Moreover, he was informed in his January 2020 SSOC that he had failed to respond to attempts to schedule his VA examination. To date, neither he nor his representative has requested that VA reschedule the examination. Neither of them asserts that he did not receive notice of the efforts to schedule his VA examination. The Board also emphasizes that the duty to assist is not a one-way street; a claimant cannot remain passive when he has relevant information or evidence. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the Veteran, not a duty to prove his claim while the Veteran remains passive). Most recently, in Martinez v. Wilkie, 31 Vet. App. 170 (2019), the Court reaffirmed that the duty to assist is not a one-way street. The Veteran must cooperate with the development and adjudication of his claim.   Therefore, in accordance with the applicable VA regulation, when, as here, the Veteran does not appear for a scheduled examination in conjunction with an original claim, the claim will be rated based on the evidence already of record. 38 C.F.R. § 3.655(b). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for allergic rhinitis is denied. The Veteran contends that his allergic rhinitis is related to his service and that he has experienced allergic rhinitis continually since his discharge from service. While the Board concedes the Veteran has a current diagnosis of allergic rhinitis, and his service treatment records (STRs) reflect that he had symptoms during his service that are often associated with it, there currently is no medical opinion linking the allergic rhinitis he now has to the symptoms he had in service. There also is not a showing of continuity of symptoms since his service according to 38 C.F.R. § 3.303(b) to otherwise establish this required correlation (“nexus”). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The Veteran’s second period of military service ended in February 1997, and private treatment records show he received a diagnosis of allergic rhinitis (i.e., seasonal allergies) in August 2006, so more than 9 years after conclusion of his service. His service treatment records indicate he was treated for chronic nasal congestion and a deviated septum in January 1997. And, during an October 2006 VA examination, an examiner opined that the Veteran’s symptoms in service were related to his now service-connected nasal septum deviation and sinusitis. While the Veteran is competent to report having experienced certain symptoms during and since his service, he is not also competent to ascribe his symptoms to a particular diagnosis and, in turn, relate the diagnosis to events that took place during his service. These critical determinations are beyond his lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, as already alluded to, the Board’s December 2018 remand noted the need for a medical nexus opinion with regards to the Veteran’s symptoms in service and later diagnosis of allergic rhinitis – specifically in terms of whether there is a relationship or correlation (“nexus”). But, as also already discussed, the record on appeal shows the Veteran was unable to be reached for examination scheduling after being sent a notification indicating he would be contacted for examination scheduling. Consequently, and to his detriment, there currently is no medical nexus opinion of record linking any of his symptoms in service to his eventual diagnosis of allergic rhinitis. For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of this claim must be denied. 2. Entitlement to service connection for ulcers secondary to medication taken for service-connected conditions (most notably, his back disability and his fibromyalgia) is denied. The Veteran contends that his ulcers were caused by (therefore are secondary to) the medication he takes for his joint pains — so for treatment of the pain attributable to his service-connected back disability and fibromyalgia. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct or even presumptive service connection, the Board’s adjudication will consider only entitlement to secondary service connection.   Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Here, though, while the Veteran has received diagnoses of ulcers, the preponderance of the evidence is against finding they are attributable (meaning caused or aggravated) by any of his service-connected disabilities, including by treatment of them in the way of pain medication. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). During his April 2010 hearing before this Board, the Veteran testified that he had received a prescription of Naproxen for joint pain – which, in turn, caused him extreme stomach pain that he asserted aggravated his stomach ulcers. He has a diagnosis of stomach ulcers, and a January 2008 VA examiner suggested the Veteran had severe abdominal pain due to Naproxen. The Board’s more recent December 2018 remand consequently acknowledged the need for a more definitive medical nexus opinion concerning the etiology of the Veteran’s ulcers – especially in terms of whether caused or aggravated by pain medication taken for treatment of his back disability and fibromyalgia. But, as already discussed, this needed medical opinion could not be obtained because the examination could not be done on remand. And, as an unfortunate consequence, there currently is no medical nexus opinion of record linking the Veteran’s stomach ulcers to any of his service-connected disabilities (most notably, his back disability and fibromyalgia), including in the way of pain medication taken for treatment of them. As a layman, the Veteran is not competent to establish this required chain link of causation, himself. 38 C.F.R. § 3.159(a)(1) and (a)(2); Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining this is a fact-specific, so case-by-case, determination that is dependent on the type of condition being claimed in terms of whether complex or, instead, simple). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of this claim must be denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings are warranted for different periods of time, based on the facts found, a practice known as “staged” ratings that is employed irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 3. Entitlement to a rating higher rating than 30 percent for sinusitis is denied. With respect to this service-connected sinusitis and deviated nasal septum, the most recent VA examination assessing the severity of this disability was in November 2009, so, admittedly, several years ago. During that November 2009 VA examination, the Veteran reported experiencing recurrent nasal congestion with copious mucoid nasal discharge, associated nasal pain, and nasofrontal headache. However, during his subsequent April 2010 hearing before this Board, the Veteran testified that his symptoms of sinusitis included runny nose, pain, tenderness, and headaches occurring constantly, in turn suggesting his disability had worsened. Accordingly, in the Board’s December 2018 remand, a new VA examination was found warranted reassessing the severity of his service-connected sinusitis and deviated nasal septum. Unfortunately, as discussed, he was unable to be reached for examination scheduling after being sent notification that he would be contacted for examination scheduling; therefore, a more recent examination did not occur.   This is not an initial-rating claim since the Veteran previously had an initial 0 percent (i.e., noncompensable) rating for this service-connected disability as of May 22, 1998. He received the higher 30 percent rating as of August 24, 2006. According to the mandatory “shall” language of 38 C.F.R. § 3.655, the failure to report for an examination scheduled in conjunction with an increased-rating claim dictates summary denial of the claim. That aside, the 30 percent rating the Veteran has had for this disability since August 24, 2006 (the date of receipt of his application for increased compensation) is under DC 6513. The review period under consideration, however, dates back a year earlier, to August 2005, i.e., back to a year immediately preceding receipt of his claim for increased compensation for this service-connected disability. See 38 U.S.C. § 5110(b)(3); C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). If it shown he met the requirements for a higher rating during that immediately preceding year – meaning if this was factually ascertainable, then the higher rating may be made effective as of that earlier date during that immediately preceding year. But there is no such indication, nor is there indication of entitlement to a rating higher than 30 percent even since August 2006. Under the General Rating Formula for sinusitis (DCs 6510 through 6514), a 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting after repeated surgeries. A higher 50 percent rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DCs 6510 through 6514. A note following DCs 6510 through 6514 defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician.   Alternatively, pursuant to DCs 6522, a 10 percent disability rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 30 percent disability rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, DC 6522. Moreover, pursuant to DC 6502, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, DC 6502. The evidence of record does not show that a rating greater than 30 percent is warranted. The Veteran has not had any incapacitating episodes of sinusitis (i.e., episodes of sinusitis requiring bed rest prescribed and treatment by a physician). At no point during the appeal does the Veteran contend, nor does the evidence show, that he had radical surgery resulting in chronic osteomyelitis or repeated surgeries resulting in near-constant sinusitis as required for a 50 percent evaluation. The Board acknowledges his contentions that his condition has worsened, however, finds that a rating higher than 30 percent is not warranted. Moreover, the Veteran is not entitled to higher rating under any other potentially applicable DCs at any time during the appeal period. The evidence establishes that he has not had nasal polyps at any time. He has not reported having any such polyps and they have not been noted on objective examination. Furthermore, although he was observed to have a deviated septum, he did not have 50-percent obstruction of both sides or complete obstruction of one side of his nasal passages at any point during the appeal period. Therefore, the criteria for a compensable rating under DCs 6502 or 6522 have not been met. See 38 C.F.R. § 4.97, DCs 6502, 6522. Additionally, there is no evidence of any additional symptoms or pathology, including additional pathology under the rating criteria for allergic or vasomotor rhinitis, bacterial rhinitis, granulomatous rhinitis, or an injury to the pharynx, which would provide a basis for the assignment of a separate rating or higher rating based on another potentially applicable DC for his disability. See 38 C.F.R. § 4.97, DCs 6501, 6521, 6522, 6523, 6524.   Accordingly, the Board finds that the criteria are not met for a rating greater than 30 percent for the Veteran's sinusitis and deviated nasal septum. And, as the preponderance of the evidence is against the assignment of any greater rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an initial rating greater than 20 percent prior to March 31, 2009, and to a rating greater than 40 percent since, for degenerative disc disease of the lumbar spine (back disability) is denied. This low back disability is rated under 38 C.F.R. § 4.71a, DC 5242, and in years past was rated instead under DC 5237. Both of these DCs are part of a General Rating Formula for Diseases and Injuries of the Spine, so the rating criteria are the same, regardless. Under this General Rating Formula for Diseases and Injuries of the Spine, 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 rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DCs 5235-5242. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note (1). Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). 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.” The spine has no opposite 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. As for his initial rating claim for the degenerative disc disease of his lumbar spine, the Veteran’s most recent VA examination evaluating the severity of this disability was in March 2009, so several years ago. The Board’s December 2018 remand of this claim tried to address that lengthy time lapse but, as discussed, ultimately was unable to, including in terms of clinical findings regarding Correia and Sharp. Prior to March 31, 2009 The Veteran had a VA spine examination in January 2008, which showed forward flexion of his thoracolumbar spine was limited to 60 degrees on repetitive motion due to pain. Active forward flexion was limited to 70 degrees. The combined range of active motion was 195 degrees. The combined range of repetitive motion was 160 degrees. There was no evidence of ankylosis and no evidence of intervertebral disc syndrome (IVDS) causing incapacitating episodes in that past year. After March 31, 2009 In March 2009, the Veteran had an additional examination that showed forward flexion of his thoracolumbar spine limited to a greater extent – namely, to just 15 degrees on active motion and to just 10 degrees on repetitive motion due to his pain. The combined range of active motion was 85 degrees. The combined range of repetitive motion was 55 degrees. There still, however, was no evidence of ankylosis and no evidence of IVDS causing incapacitating episodes. Consequently, a higher evaluation of 50 percent is not warranted because medical evidence does not show “unfavorable” ankylosis of the entire thoracolumbar spine. Indeed, the Veteran does not have “favorable” or “unfavorable” ankylosis of this segment of his spine, and even if he had “favorable” ankylosis (which, again, he does not), that would at most entitle him to a 40 percent rating, which is the rating he has had for this low back disability effectively since March 31, 2009. See 38 C.F.R. § 4.71a, DCs 5235-42, Note (5).   The Board consequently finds that the preponderance of the evidence is against a rating in excess of 20 percent prior to March 31, 2009 and in excess of 40 percent since for the degenerative disc disease of the Veteran’s lumbar spine. The Board acknowledges his lay reports of symptoms (in particular, his hearing testimony) and that there was functional loss due to pain during flare-ups and difficulty walking. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating forward flexion of his thoracolumbar spine to 30 degrees or less prior to March 31, 2009, or unfavorable ankylosis of his entire thoracolumbar spine since March 31, 2009. Consideration additionally has been given to assigning a rating alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran has not been diagnosed with IVDS; indeed, to the contrary, the VA compensation examiners expressly indicated the Veteran does not have IVDS, and in any event the evidence of record also is against a finding that he was ever prescribed bed rest by a physician of the frequency and duration meeting the criteria for a higher rating on this other basis. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against finding that the Veteran has any other neurological abnormality associated with (i.e., as a complication of) his lumbar spine disability. 38 C.F.R. § 4.71a, DCs 5235-5242, Note (1). Thus, he is not entitled to any separate rating on this basis. But the Board points out that he already has separate 40 percent ratings for peripheral atherosclerotic disease of his right and left lower extremities, however, instead associated with his service-connected hypertension and consequent hypertensive heart disease (so not on account of his low back disability).   For these reasons and bases, the preponderance of the evidence is against this claim for higher ratings for this disability – prior to and since March 31, 2009. In denying any greater rating, the Board finds the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.