Citation Nr: 21011996 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-37 794 DATE: March 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a service-connected right knee disability is DENIED. Entitlement to an initial rating in of 40 percent, but not greater, for the service-connected lower back disability is GRANTED. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran endured right knee pain and recurrent episodes of locking. During the appellate period, the Veteran did not demonstrate right knee ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, flexion limited to 30 degrees, or extension limited to 5 degrees. 2. Early in the claim period, the Veteran demonstrated 30 degrees of forward flexion of the thoracolumbar spine. During the claim period, the Veteran did not demonstrate spinal ankylosis. The Veteran was not prescribed bed rest for intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5262 (2020). 2. The criteria for an initial 40 percent rating, but not greater, for the service-connected lumbar spine disability have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.27, 4.40, 4.49, 4.7.1a, Diagnostic Codes 5237, 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from August 1997 to February 2005. In February 2016, the Board addressed the claims listed on the title page. At that time, the Board remanded the claims to the agency of original jurisdiction (AOJ). The Board directed the AOJ to obtain outstanding medical records and schedule VA examinations that addressed the severity of the Veteran’s service-connected lower back and right knee disabilities. In May 2017, the Board directed the AOJ to make a second attempt to obtain outstanding treatment records. The Board directed the AOJ to schedule a Correia-compliant VA examination for the Veteran’s right knee disability. In July 2018, the Board directed the AOJ to make another attempt to obtain outstanding private treatment records. The Board directed the AOJ to schedule VA examinations that addressed the severity of the lower back and right knee disabilities. In October 2020, the Board remanded the claims to the AOJ for issuance of a supplemental statement of the case (SSOC). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations 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. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected lower back and right knee disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. 1. Entitlement to an initial rating in excess of 10 percent for a service-connected right knee disability is denied. In May 2007, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for service connection for a right knee disability. In March 2009, the AOJ issued a rating decision. Therein, the AOJ granted a non-compensable rating for a right knee strain. In March 2010, the Veteran submitted a VA Form 21-4138. Therein, the Veteran requested an increased rating for the service connected right knee disability. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes (DCs) predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, including knee joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran has been in receipt of a 10 percent evaluation under DC 5260 since May 29, 2007. See 38 C.F.R. § 4.71 (a). In addition to the service-connection compensation available under DC 5260, this claim requires consideration of the other possibly applicable Diagnostic Codes. Under DC 5260, degenerative joint disease shall be rated based on limitation of motion of the right knee, as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. 38 C.F.R. § 4.71a, DC 5260. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is limitation of motion but it is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion—to be combined, not added. If there is no limitation of motion, a 10 percent rating applies if there is X-ray evidence that two or more major joints or two or more minor joint groups are involved. A 20 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 U.S.C. § 4 .71a, DC 5003. For purposes of rating disability from arthritis, the major joints are the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45. Although “incapacitating exacerbations” is not defined under DC 5003, the Board analogizes it to “incapacitating episodes,” which is defined in the IVDS Formula at Note (1) as “a period of acute signs and symptoms . . . that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DC 5003, IVDS Formula at Note (1). Under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71 (a), DC 5257. The Board notes that, effective February 7, 2021, the VA regulations that address knee subluxation and instability were revised. During the claim period, the Veteran did not demonstrate right knee subluxation and/or instability; consequently the newly revised 38 C.F.R. § 4.71a, DC 5257 (2021) is not for application. Diagnostic Code 5258 assigns a 20 percent evaluation for dislocated semilunar cartilage (meniscus) with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71 (a), DC 5258. Additionally, DC 5259 assigns a 10 percent rating for removal of semilunar cartilage, symptomatic. 38 C.F.R. § 4.71 (a), DC 5259. Under DC 5260, which provides disability evaluations based on limitation of flexion, a noncompensable evaluation is warranted when knee flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees; and a 30 percent evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71 (a), DC 5260. Under DC 5261, a 10 percent evaluation is warranted when extension is limited to 10 degrees, a 20 percent evaluation is warranted when extension is limited to 15 degrees, a 30 percent evaluation is warranted when extension is limited to 20 degrees, a 40 percent evaluation is warranted when extension is limited to 30 degrees, and a 50 percent evaluation is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71 (a), DC 5261. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71 (a), Plate II. VAOPGCPREC 23-97 provides that a Veteran may be assigned separate ratings for arthritis with limitation of motion under DC 5260 or 5261, and for instability or subluxation under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 9-98, VA General Counsel held that if a veteran has a disability rating under DC 5257 for instability or subluxation of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be assigned based on painful motion under 38 C.F.R. § 4.59. The VA General Counsel has issued an opinion holding that “separate ratings may be assigned under DC 5260 and DC 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.” See VAOPGCPREC 9-2004 (September 17, 2004). In October 2007, the Veteran underwent a VA examination that addressed the severity of the service-connected right knee disability. The VA examiner did not note right knee deformity, giving way, instability, stiffness, weakness, or episodes of dislocation or subluxation. The Veteran reported right knee pain, one episode of effusion, and locking several times a week. The VA examiner noted the following: no need for assistive aids, no incapacitating episodes, and no functional limitations on standing or walking. The VA examiner reported the following right knee range of motion (ROM) in degrees: 140 flexion and 0 extension. The VA examiner did not report right knee ROM loss after repetitive testing. The Veteran demonstrated right knee crepitus. The Veteran did not demonstrate right knee ankylosis, instability or other abnormality. The VA examiner reported that imaging studies revealed minimal narrowing of the right knee joint space, medially. In August 2013, a Primary Care Note was generated at the Framingham CBOC. Therein, the provider reported intermittent right knee pain, which increased with prolonged walking and standing. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In December 2015, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that right knee pain “comes and goes,” the knee gives out at least once a week, and he recently fell from the knee giving out. The Veteran testified that the knee pain keeps him from being able to do things around the house, he has constant knee pain, and if he sits for an extended period his knee will regularly lock up. The Veteran testified that, during flare-ups, he will utilize knee brace. The Veteran testified that he experienced clicking and popping in his right knee. In April 2016, the Veteran underwent a VA examination that addressed the severity of the service-connected right knee disability. The VA examiner noted a diagnosis for right knee patellofemoral pain syndrome. The Veteran did not report flare-ups of the right knee disability. The Veteran relayed the following right knee functional loss: activities involving weight bearing cause knee pain, activities involving right knee ROM cause pain, and decreased ROM affects ambulation and use of lower extremity. The VA examiner reported the following initial right knee ROM (in degrees): 110 flexion and 0 extension. The Veteran demonstrated pain during flexion and extension of the right knee. The Veteran demonstrated pain with right knee weight bearing and palpation. The VA examiner reported right knee crepitus. The Veteran did not demonstrate ROM loss after repetitive testing. The VA examiner reported that, without resorting to speculation, it was not possible to determine whether pain weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period time. The VA examiner reported the following additional factors for the disability: 1) Activities involving weight bearing cause right knee pain. 2) Decreased range of motion affects ambulation and use of lower extremity. The Veteran demonstrated 5/5 muscle strength in flexion and extension. The Veteran did not demonstrate ankylosis. The VA examiner noted that there was no history of right knee recurrent subluxation, lateral instability, or effusion. The Veteran demonstrated normal right knee stability. The VA examiner noted that the Veteran had never endured a right knee meniscus (semilunar cartilage) condition. The VA examiner noted that an assistive device was not utilized for normal locomotion. The VA examiner reported that imaging studies did not reveal degenerative or traumatic right knee arthritis. In June 2016, the AOJ issued a rating decision. Therein, the AOJ increased the initial rating for the service-connected right knee disability to 10 percent. The AOJ noted that a 10 percent rating was warranted for the painful right knee motion reported and noted during the October 2007 VA examination. In September 2019, the Veteran underwent a VA examination that addressed the severity of the service-connected right knee disability. The VA examiner noted a diagnosis for right knee strain. The Veteran reported intermittent right knee flare-ups that follow prolonged weight bearing. The Veteran relayed that function loss included difficulty with prolonged standing, walking, and stairs. The VA examiner reported the following initial ROM (in degrees): 110 flexion and 0 extension. The VA examiner noted that the decreased ROM affected ambulation and activities that required use of the extremity. The Veteran demonstrated crepitus, pain with weight bearing, and tenderness with palpation. The Veteran did not demonstrate ROM loss with repetitive testing. The VA examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The VA examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability during a flare-up. The Veteran demonstrated 5/5 strength during flexion and extension. The Veteran did not demonstrate ankylosis. A history of recurrent subluxation, lateral instability, or recurrent effusion was not reported. The Veteran demonstrated normal right knee stability test values. The VA examiner reported no history for recurrent patellar dislocation, “shin splints”, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The VA examiner reported no history for a right knee meniscus condition. The VA examiner reported that assistive devices were not used for normal locomotion. The VA examiner reported that imaging studies revealed left knee degenerative arthritis, but none was identified for the right knee. The following functional impact was reported: 1) Activities involving weight bearing and knee ROM cause right knee pain. 2) Decreased ROM affects ambulation and use of lower extremity. The Veteran did not demonstrate pain with non-weight bearing or passive ROM. The Veteran demonstrated pain with weight bearing. Throughout the appellate period, the Veteran has competently reported right knee pain and recurrent episodes of locking. In December 2015, the Veteran testified the right knee pain “comes and goes” or is constant. The Veteran testified that his right knee gives out on a weekly basis. The Veteran testified that he would utilize a brace during right knee flare-ups. During the appellate period, arthritis of the right knee was not identified and/or competently reported. Consequently, an increased rating under DC 5003 is not warranted. 38 C.F.R. § 4.71a. The Board notes that the Veteran has competently reported that his right knee gives out. However, the medical evidence reflects that the Veteran has not demonstrated right knee subluxation and/or lateral instability. Consequently, a rating under DC 5257 is not warranted. Id. The Board notes that the Veteran competently reported locking and pain of the right knee. However, the evidence does not support the presence of a dislocated right knee semilunar cartilage and frequent episodes of effusion. Consequently, a rating under DC 5258 is not warranted. Id. At worst, the Veteran demonstrated 110 degrees of right knee extension during the appellate period. Consequently, a rating in excess of 10 percent is not warranted under DC 5260. Id. The Veteran consistently demonstrated 0 degrees of ROM during right knee extension. Consequently, a disability rating under DC 5261 is not warranted. Id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for a rating in excess of 10 percent for the service-connected right knee disability. Since the preponderance of the evidence is against increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim fora rating in excess of 10 percent for the service-connected right knee disability must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to an initial rating of 40 percent, but not greater, for a service-connected lower back disability is granted. In May 2007, the Veteran submitted a VA Form 21-526. Therein the Veteran initiated a claim for service connection for a lower back disability. In March 2009, the AOJ issued a rating decision. Therein, the AOJ granted a non-compensable rating for a lumbar spine strain. In March 2010, the Veteran submitted a VA Form 21-4138. Therein, the Veteran requested an increased rating for the service connected lumbar spine disability. The criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. The Board further notes that a spine disability may be rated under multiple diagnostic codes. However, the Board finds the General Rating Formula for the spine provides the most potential for a favorable rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Under the alternative formula, DC 5243, there must be medical evidence demonstrating intervertebral disc syndrome and/or incapacitating episodes requiring physician prescribed bedrest. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1. Here, the evidence does not show any incapacitating episodes requiring physician prescribed bedrest. As such, DC 5243 is not for application in the instant appeal, and the Board will proceed with analysis under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent evaluation will be assigned 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 of more of height. A 20 percent rating is assigned 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 requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). In October 2007, the Veteran underwent a VA examination that addressed the severity of the service-connected lower back disability. The Veteran reported sharp, severe, and radiating pain of the lower spine that occurred weekly to monthly, lasting for hours. The Veteran did not report flare-ups. The VA examiner did not report the presence of intervertebral disc syndrome (IVDS). The VA examiner noted normal gait and posture without abnormal spinal curvatures. The Veteran did not demonstrate spinal ankylosis. The Veteran demonstrated the following range of motion (ROM) in degrees: 90 flexion, 30 extension, 30 left and right lateral flexion, and 30 left and right lateral rotation. The Veteran demonstrated pain during extension, right lateral flexion, and right lateral rotation. The VA examiner relayed that, in all planes of motion, there was no ROM loss after repetitive use. The VA examiner relayed that imaging studies revealed minimal narrowing of the L5-S1 intervertebral disc space. In February 2010, the Veteran’s treatment records from Kingston Chiropractic & Rehab LLC were associated with the claims file. Therein, the provider reported a history of atypical lower back pain. Early in the claim period, the Veteran reported 6/10 pain, which was aggravated by activities involving normal, everyday lifting. In August 2013, a Primary Care Note was generated at the Framingham CBOC. Therein, the provider reported that Veteran suffered from chronic low back pain. In September 2013, a Physical Medicine Rehabilitation Consult was generated at the Bedford VA Medical Clinic (VAMC). Therein, the Veteran reported lower back pain for 10 years, which resulted in him seeking chiropractic care. The VA provider reported the following ROM (in degrees): 30 flexion, 15 extension, 30 left and right lateral flexion, and 30 left and right lateral rotation. The VA provider noted discomfort with palpation of the paraspinal muscles. In November 2013, a Primary Care Progress Note was generated at the Framingham CBOC. Therein, the provider noted a sequestered disc fragment compressing the traversing left L5 nerve root. The Veteran reported discomfort with palpation of the lumbar spine on the left. In December 2015, a statement from the Veteran’s supervisor was associated with the claims file. Therein, the supervisor relayed that the Veteran had taken sick leave to rest, see a chiropractor, and receive treatment for his lower back pain. In December 2015, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that, during flare-ups, he will utilize back brace. The Veteran testified that he wore a back brace while doing housework. The Veteran testified that he missed work because of back pain. The Veteran testified that his back pain is constantly 5/10. In January 2016, a statement from the Veteran’s co-worker was associated with the claims file. The peer relayed that the Veteran’s back pain was so severe that he could not assist the rest of his team when moving equipment. The peer relayed that there were times that the Veteran would seek chiropractor assistance to relieve back pain for a return trip to home. In February 2016, a statement from the Veteran’s wife was associated with the claims file. The Veteran’s spouse relayed that constant back pain interfered with all facets of the Veteran’s life at home, to include an inability to sit or stand for long periods, play with his children, and do yard work. In April 2016, the Veteran underwent a VA examination that addressed the severity of the service-connected lower back disability. The VA examiner noted diagnoses for lumbar arthritis and IVDS. The VA examiner noted that the Veteran’s IVDS did not result in doctor prescribed bed rest during the prior year. The Veteran did not report flare-ups of the thoracolumbar spine. The Veteran reported the following functional impairment: “(a)ctivities involving trunk range of motion (bending, twisting) and weight bearing (standing, walking) causes low back pain. Decreased range of motion of the back affects ambulation and activities requiring use of the back.” The VA examiner reported the following initial ROM (in degrees): 70 flexion, 20 extension, 20 left and right lateral flexion, and 20 left and right lateral rotation. The VA examiner relayed that the decreased ROM of the back affects ambulation and activities requiring use of the back. The VA examiner noted objective pain with weight bearing and palpation of the bilateral paralumbar. The VA examiner noted that there was no ROM loss after three repetitions. The VA examiner reported that, without resorting to speculation, it was not possible to determine whether pain weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period time. The Veteran did not demonstrate guarding or muscle spasms of the thoracolumbar spine. The VA examiner noted that the Veteran did not use assistive devices for normal locomotion. In June 2016, the AOJ issued a rating decision. Therein, the AOJ increased the initial rating for the service-connected lumbar spine disability to 10 percent. In July 2016, a statement from the Veteran’s private physician was associated with the claims file. Therein, provider relayed that an MRI revealed disc herniation at L4/L5 and sacralization of L5. The provider identified diagnoses for lumbar, thoracic, and cervical subluxation and lumbar disc herniation. In August 2016, a Primary Care Progress Note was generated at the Framingham CBOC. Therein, the provider noted L4/L5 disk herniation with caudal migration. In September 2019, the Veteran underwent a VA examination that addressed the severity of the service-connected lower back disability. The VA examiner reported diagnoses for lumbar strain, degenerative joint disease (DJD), and IVDS. The Veteran reported lower back pain on a daily basis. The Veteran reported intermittent flare-ups with increased pain. For functional loss, the VA examiner reported difficulty with prolonged sitting, standing, bending, and lifting. The VA examiner recorded the following initial ROM (in degrees): 70 flexion, 20 extension, 20 left and right lateral flexion, and 20 left and right lateral rotation. The Veteran demonstrated pain with weight bearing and tenderness with palpation of the paraspinal muscles. The VA examiner noted that there was not a ROM loss after three repetitions. The VA examiner reported that weakness, fatigability or incoordination did not significantly limited functional ability with repeated use over a period time. The VA examiner reported that weakness, fatigability or incoordination did not significantly limited functional ability during a flare-up. The Veteran demonstrated muscle spasms of the thoracolumbar spine, but it did not result in abnormal gait or spinal contour. The VA examiner noted that the Veteran’s IVDS did not require doctor prescribed bed rest during the prior year. The VA examiner noted that the Veteran did not use assistive devices for normal locomotion. The VA examiner remarked that, “(n)ew diagnoses of lumbar DJD, DDD and IVDS represent a progression of the SC lumbar condition. Of note, at the 2007 initial C&P exam, imaging showed mild intervertebral disc space narrowing at that time.” The VA examiner noted that pain began at the end of active ROM testing. Early in the claim period, September 2013, the appellate record reflects that the Veteran demonstrated 30 degrees of forward flexion of the thoracolumbar spine. Consequently, an initial 40 percent rating is warranted for the service-connected lower back disability under 38 C.F.R. § 4.71a, DC 5237. During the claim period, the Veteran did not demonstrate spinal ankylosis. Moreover, the Veteran was not prescribed bed rest for the diagnosed intervertebral disc syndrome (IVDS). Consequently, a rating in excess of 40 percent is not warranted by the evidence. Id at DC 5237 & 5243. Ultimately, the preponderance of the evidence favors the Veteran’s claim for an initial 40 percent rating, but not greater, for the service-connected lower back disability. Accordingly, this increased rating claim must be granted. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.