Citation Nr: 21013978 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-37 699 DATE: March 11, 2021 ORDER A disability rating in excess of 20 percent at any time during the appeal period, prior to February 13, 2017, and in excess of 40 percent thereafter for L2-L3; L5-S1 disc herniation, lumbar strain (“low back disability”) is denied. FINDINGS OF FACT 1. Throughout the appeal period, prior to February 13, 2017, the Veteran’s low back disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 2. As of February 13, 2017, the Veteran’s low back disability has been manifested by forward flexion of the thoracolumbar spine at 30 degrees or less, without favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent at any time during the appeal period, prior to February 13, 2017, for low back disability, have not been met; the criteria for a disability rating in excess of 40 percent at any time during the appeal period for low back disability, have not been met 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5235-5243; Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242, and 5243). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to service connection for a psychiatric disorder was originally on appeal. However, after this issue was remanded in July 2018, the RO granted service connection for this claim in a December 2020 rating, representing a full grant of benefits. Accordingly, this issue is no longer before the Board. The only remaining issue on appeal is listed on the title page. The Board recognizes that the RO issued a supplemental statement of the case (SSOC) in January 2021 and listed the psychiatric disorder claim as an increased rating claim. The Board also recognizes the February 2021 Brief submitted by the Veteran’s representative, wherein one of the issues listed is an increased rating claim for psychiatric disorder and the representative erroneously describes the July 2018 Board remand as a remand that pertained to an increased rating claim for psychiatric disorder. There is nothing in the file to illustrate that the Veteran properly appealed a claim for increased rating for psychiatric disorder. Therefore, the increased rating claim has not been appealed to the Board and is not before the Board. Lastly, of note, as will be described below, the appeal period commences April 15, 2013 and not June 20, 2014—the effective date the RO assigned the initial rating of 30 percent for the psychiatric disorder. The Board acknowledges that the Veteran is service connected for left lumbar radiculopathy. However, there is nothing in the record to indicate an increase in severity, specifically there is nothing to show moderate paralysis of the sciatic nerve. As such, the Board will focus its analysis on the increased rating for the spine. The Board remanded the matter in July 2018 for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. Increased Rating Procedural History The Veteran filed Statements in Support of Claim on April 15, 2013. A review of these statements does not illustrate an increased claim for a low back disability. Nevertheless, the RO issued a November 2014 rating decision denying the increased rating claim. By way of filing a Statement in Support of Claim, the Veteran timely appealed this decision in December 2014. Of note, a prescribed form was not required until March 25, 2015. Also, of note, the Veteran did file a timely notice of disagreement in September 2015 on the prescribed form. Therefore, despite how the beginning of the time period on appeal has been referred to by the RO, the Board finds that the appeal period commences April 15, 2013. Legal Criteria When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of ‘the normal working movements of the body such as ‘excursion, strength, speed, coordination, and endurance,’ in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine, on the basis of limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran’s low back disability is rated under Diagnostic Codes 5235-5243. Ratings under the General Rating Formula are made 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. Among other rating criteria, VA’s rating schedule includes diagnostic codes related to arthritis of the musculoskeletal system. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5003. During the pendency of the appeal, the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242, and 5243). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria as of February 7, 2021. With respect to the applicable Diagnostic Codes to the Veteran’s low back disability, the Diagnostic Codes 5003, 5010, 5243, and 5242 were revised, not materially, and will be discussed below. The substantive criteria under the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes were not revised and will be listed immediately below. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. Note (1): to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated 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 are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): 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. Criteria effective prior to the February 7, 2021 revision Diagnostic Codes 5003 and 5010 pertains to arthritis. Under Diagnostic Code 5003, the low disability may be rated under provisions for evaluating arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003 Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id.  Diagnostic Code 5010 refers to arthritis due to trauma, substantiated by x-ray findings. The code directs that traumatic arthritis be rated as degenerative arthritis (Diagnostic Code 5003). Id. Diagnostic Code 5242 refers to degenerative arthritis of the spine and states “see also diagnostic code 5003”. Diagnostic Code 5243 refers to Intervertebral disc syndrome (IVDS). IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Criteria effective from February 7, 2021 Diagnostic Code 5003 was revised to make clear that this code only applies to degenerative arthritis and not to post-traumatic arthritis. The 10 percent rating for non-compensable limitation of motion has now been removed. Diagnostic Code 5010 was revised to refer to post-traumatic arthritis and the instruction to rate as degenerative arthritis under 5003 was removed. Traumatic arthritis is now rated as “limitation of motion, dislocation, or other specified instability under the affected joint.” Diagnostic Code 5242 added the description of degenerative disc disease and specifically stated that it did not apply to IVDS. In addition to the reference to Diagnostic Code 5003 it now states see Diagnostic Code 5010. Diagnostic Code 5243 now specifically stated that this diagnostic code should be assigned only when there is disc herniation with compression and or irritation of the adjacent nerve root and that for all other disc diagnoses Diagnostic Code 5242 should be assigned. The Veteran filed his claim for an increased disability rating in April 2013. Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one-year period, an increase in a disability was factually ascertainable. See 38 C.F.R. § 3.400(o). However, a review of the file shows that the earliest dated substantive evidence is dated May 2013. Contentions The Veteran contends that his low back disability warrants a higher rating. He described experiencing pain and how one of the VA examiners forced him to bend more than what he felt comfortable doing, despite him reporting pain. See July 2016 VA- Form 9. Appeal Period The Veteran’s low back disability is rated as 20 percent disabling prior to February 13, 2017 and 40 percent thereafter. He was in receipt of a 100 percent rating from September 20, 2016 to December 31, 2016 and a 20 percent prior to September 20, 2016. Therefore, the Board will assess as to whether a disability rating in excess of 20 percent is warranted anytime from April 2013 to September 19, 2016, and from January 1, 2017 to February 12, 2017; and whether a disability rating in excess of 40 percent is warranted thereafter. Evidence VA treatment records dated between May 2013 and November 2019 show complaints of and treatment for low back pain. A June 2017 VA treatment records shows a worsening of back pain since a fall two week prior. A November 2019 VA treatment record shows decreased range of motion of the lower back, with adequate muscle tone. An October 2014 VA examination report notes the Veteran’s complaints of low back pain. He stated the pain is in constant, describing the pain as a stabbing like pain sensation which gets worse after being in a standing position for a prolonged time. He described flare-ups as not being able to stand up from bed for a few hours. Upon physical examination, the October 2014 examiner noted the Veteran’s lumbar range of motion (ROM) as follows: forward flexion at 40 degrees, with objective evidence of painful motion beginning at 30 degrees, extension at 5 degrees, with objective evidence of painful motion beginning at 5 degrees, right and left lateral flexion at 15 degrees, with objective evidence of painful motion beginning at 10 degrees, right and left lateral rotation at 15 degrees with objective evidence of painful motion beginning at 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. There was additional limitation of ROM following the testing. The Veteran’s ROM was as follows: forward flexion at 35 degrees, extension at 5 degrees, right and left lateral flexion at 10 degrees, right and left lateral rotation at 15 degrees. Factors contributing to the functional impairment and or additional limitation of ROM was listed as less movement than normal, and pain on movement. There was no localized tenderness or pain to palpation of the soft tissue of the thoracolumbar spine, muscle spasms, or guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. There was guarding of the thoracolumbar spine resulting that did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal. There was no muscle atrophy or ankylosis of the spine. The Veteran was diagnosed with lumbar spine intervertebral disc syndrome (IVDS), with incapacitating episodes over the past 12 months due to IVDS. The total duration over the past 12 months was with incapacitating episodes having a total duration of at least two weeks but less than four weeks. He would use a brace regularly and crutches occasionally, for his low back pain. Imaging studies had not been performed. The examiner concluded that the Veteran’s low back disability did not impact his ability to work. Recognizing the Mitchell criteria, the examiner stated that pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. There was no evidence of fatigability, incoordination, muscle weakness, or pain during the exam. To express additional limitation due to pain in terms of degrees of additional ROM is not possible in view that should be documented during a positive flare-up period not during a regular medical evaluation. Such additional limitation could not be expressed in terms of additional ROM because it would be speculative in view that no positive flare-ups were present or seen during the exam. Therefore, an opinion concerning additional ROM loss during flare-ups is not feasible since in order to provide such information it must be done in the presence of a flare-up. An April 2015 VA examination report notes the Veteran’s complaints of flare-ups, describing it as severe pain in the low back. The functional loss was described as difficulty walking. Upon examination, the following initial ROM were noted as follows: flexion at 0 to 45 degrees, extension at 0 to 10 degrees, right and left lateral flexion 0 to 15 degrees, right lateral and left rotation 0 to 15 degrees, with pain exhibited at each ROM. Functional loss was described as difficulty bending over. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine back. This was described as paravertebral muscle tenderness. The Veteran was able to perform repetitive-use testing with three repetitions., with no additional limitation of ROM following the testing. Pain, weakness fatigability or incoordination significantly limit functional ability with repeated use over a period of time, and during flare-ups. The examiner was not able to describe this in terms of ROM. Pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. There was no evidence of fatigability, incoordination, or weakness, during the exam. To express additional limitation due to pain in terms of degrees of additional ROM was not possible in view that there was not a positive flare-ups episode during the exam. There was muscle spasm, guarding, tenderness, and spasm, but neither resulted in abnormal gait or abnormal spinal contour. There were no additional factors contributing to the disability. Muscle strength testing was normal. There was no muscle atrophy or ankylosis of the spine. The examiner concluded that the Veteran did not have a diagnosis of IVDS. He did not use assistive device as a normal mode of locomotion. Imaging studies were performed, and the results documented arthritis. The functional impact to the Veteran’s ability to work was described as difficulty in performing work duties as a policeman, such as prolonged standing. An April 2016 VA examination report shows a diagnosis of IVDS in addition to the disc herniation, lumbar strain, and degenerative joint disease. The Veteran reported continuous low back pain and occasional radiation to his bilateral buttocks. He reported flare-ups and described them as being caused by repetitive bending at the waist, prolonged sitting and ambulation, and prolonged standing. He did not report any functional loss or impairment. Upon examination, the following initial ROM were noted as follows: flexion at 0 to 40 degrees, extension at 0 to 15 degrees, right and left lateral flexion 0 to 15 degrees, right and left lateral rotation 0 to 15 degrees. Pain was noted on the exam at each ROM, but it did not result in functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. This was described as mild tenderness to palpation at lumbar paravertebral muscle. The Veteran was able to perform repetitive-use testing with three repetitions, with no additional loss of function or ROM following the testing. The examiner could not answer whether there was fatigability, incoordination, or weakness that significantly limited functional ability with repeated use over time, or whether it did so with flare-ups. The examiner stated that all musculoskeletal disorders present in an individual could potentially cause functional limitations during repetitive use over a period of time; however, to describe functional limitation in termers of severity (mild, moderate, severe) or in terms such as significant versus non-significant based on a possible future event would be mere speculation. There was no muscle spasm. There was guarding and localized tenderness, but neither resulted in abnormal gait or abnormal spinal contour. The additional factor that contributed to the disability was listed as interference with standing. Muscle strength testing was normal. There was no muscle atrophy or ankylosis of the spine. The Veteran was diagnosed with IVDS. He did not have any episodes of acute signs or symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months due to IVDS. He would use a brace occasionally. Imaging studies were performed, and arthritis was not documented. The functional impact to his work was described as “avoid prolonged standing, and prolonged sitting, avoid heavy lifting/carrying/pushing.” A February 2017 VA examination showed diagnoses of IVDS, lumbar disc disease, and lumbar radiculopathy. The Veteran reported flare-ups, describing them as daily, lasting hours. The functional loss or functional impairment was described as loss of standing and ambulation tolerance. Upon examination, the initial ROM of flexion was at 0 to 15 degrees. Pain was noted on exam and it resulted in functional loss. Pain was noted at forward flexion, right lateral rotation, and left lateral rotation. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. This was described as pain at “paravertebrals.” The Veteran was able to perform repetitive-use testing with three repetitions, with no additional loss of function or limitation of ROM following the testing. There was muscle spasm and guarding, but neither resulted in abnormal gait or abnormal spinal contour. There were no additional factors contributing to the disability. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis of the spine and no diagnosis of IVDS. He would use a brace regularly. Scars were shown, but there was no objective evidence that any were painful, unstable, or had a total area equal to or greater than 39 cm. Imaging studies were performed and documented arthritis. The functional impact to his work was described as pain produced upon weight bearing as well as upon active ROM. A November 2020 VA examination showed diagnoses of lumbosacral strain and degenerative arthritis of the spine. The Veteran reported flare-ups, described it as low back pain. The functional loss or functional impairment was described as not being able to do sports or exercise. Upon examination, the initial ROM of flexion was at 0 to 30 degrees. Pain was noted on examination at each ROM and caused functional loss. After repetitive use testing there was no additional loss of function or ROM. Flexion remained at 0 to 30 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was evidence of paint with weight bearing. There was no guarding or muscle spasm. Muscle strength testing was normal and there was no muscle atrophy. Additional factors contributing to the disability were listed as interference with sitting and interference with standing. There was no ankylosis of the spine and no diagnosis of IVDS. The Veteran would use a cane regularly and a walker occasionally. No scars were shown. Imaging studies had not been performed. The functional impact to his work was described as not being able to perform certain duties as a policeman such as lacking the ability to climb down the stairs, push cargo, etc. Analysis After review of the evidence, the Board finds that the currently assigned ratings of 20 percent from April 2013 to September 19, 2016, and from January 1, 2017 to February 12, 2017; and 40 percent as of February 13, 2017 are appropriate. First, the Board recognizes that the Veteran was in receipt of a temporary total evaluation of 100 percent from September 20, 2016 to December 31, 2016. As he was in receipt of 100 percent, the maximum allowed, the Board will not discuss the time period between September 20, 2016 to December 31, 2016. From April 2013 to September 19, 2016, and from January 1, 2017 to February 12, 2017, the evidence of record shows forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, even when considering the evidence of flare-ups, painful motion, and functional loss. The preponderance of the evidence is against a finding supporting a higher rating under applicable diagnostic criteria under the General Rating Formula and Diagnostic Codes 5237 and 5242. Aside from the October 2014 VA examination report, there was no additional limitation of the range of motion on repetitive testing. The October 2014 VA examination report showed a loss of 5 degrees at flexion after repetitive testing, with no additional limitation of ROM at extension, prior to February 13, 2017. There is no evidence of muscle atrophy or ankylosis of the spine. Muscle strength testing was normal. The October 2014 and April 2016 VA examiners concluded that the Veteran had a diagnosis of IVDS, with the April 2016 VA examiner clearly stating that the Veteran did not have any episodes of acute signs or symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months due to IVDS. The October 2014 examiner did not specify the total duration of the incapacitating episodes during the past 12 months. Even if the Board were to assume the IVDS required bed rest prescribed by a physician and treatment by a physician there is no probative evidence of record to show incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. As such a higher rating of 40 percent for IVDS is not warranted. Again, the Veteran is not entitled to a disability rating in excess of 20 percent at any time prior to February 13, 2017 because he did not have forward flexion of the thoracolumbar spine at 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine, under the applicable rating criteria both prior to and as of February 7, 2021. The Board recognizes that both the April 2015 VA DBQ report and the February 2017 VA DBQ report note arthritis of the low back. However, the highest rating under Diagnostic Codes 5003 and 5010 would be 20 percent, whether the current criteria was applied or whether the criteria prior to February 7, 2021 was applied. Additionally, a separate rating under these codes would not be permitted as limitation of motion has been contemplated by the currently assigned Diagnostic Codes 5235 to 5243. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran, the statements made in the February 2021 Brief, and has considered his reports of flare-ups. The Board understands his belief that his symptoms warrant a disability rating in excess of 20 percent; however, he is not competent to determine whether his back disability warrants a rating higher than 20 percent at any time prior to February 13, 2017. Although the Veteran reported flare-ups, describing the pain as stabbing like pain sensation, during the October 2014 examination, he was able to forward flex to 40 degrees, and forward flex to 35 degrees after repetitive use testing. Thus, the 20 percent rating assigned reasonably contemplates any flare-ups as may occur and is consistent with the spirit of Mitchell, supra. Additionally, the functional loss due to pain is contemplated by the assigned Diagnostic Codes 5235 to 5243. As such, the criteria under DeLuca have been met. In sum, the most probative evidence of record does not support a rating in excess of 20 percent for the Veteran’s low back disability at any time, prior to February 13, 2017. After review of the evidence, the Board finds as of February 13, 2017 a 40 percent rating is warranted because the evidence of record shows forward flexion of the thoracolumbar spine at 30 degrees or less when considering the evidence of flare-ups, painful motion, and functional loss. The preponderance of the evidence is against a finding supporting a higher rating under applicable diagnostic criteria under the General Rating Formula and Formula for Rating IVDS, both prior to and as of February 7, 2021. The Veteran presented with muscle spasm and guarding, but without abnormal gait or abnormal spinal contour, and flexion at 15 degrees, as well as objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine during the February 2017 VA examination. Muscle strength testing was normal and there was no muscle atrophy. At no time during the appeal period did he have unfavorable ankylosis of the entire thoracolumbar spine. Therefore, a 50 percent disability rating could not be assigned even considering his reports of flare-ups. The record shows IVDS as of October 2014, but the Veteran would not receive a higher evaluation if his low back disability was evaluated under Diagnostic Code 5243, as here is no probative evidence of record to show incapacitating episodes having a total duration of at least six weeks during the past 12 months . Also, of note, the February 2017 VA examiner concluded there was no current diagnosis of IVDS, and the November 2020 VA examiner reached that same conclusion. Again, a higher disability rating requires unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges that the February 2017 VA examiner concluded that the Veteran has a diagnosis of arthritis, and that although imaging studies were not performed the November 2020 VA examiner confirmed the diagnosis of arthritis. However, as detailed above the maximum allowed under Diagnostic Codes 5003, 5010 is 20 percent and a separate rating is impermissible as it would constitute pyramiding. The Board also acknowledges that the February 2017 VA examiner noted that there were scars associated with the low back disability. However, the examiner concluded that there was no objective evidence that any were painful, unstable, or had a total area equal to or greater than 39 cm. Additionally, the most recent VA examination notes that there are no scars of the low back. As such, separate, compensable ratings are not warranted for scars of the back. The Board carefully considered the lay assertions of the Veteran as well as the statements in the February 2021 Brief. The Board understands his belief that his symptoms warrant a disability rating in excess of 40 percent, and again notes that he is not competent to determine whether he is entitled to the next higher evaluation. The Veteran reported flare-ups, describing them as occurring daily, lasting hours. However, the currently assigned rating accounts for these flare-ups and the most recent VA examination showed some improvement in the ROM of flexion. In sum, the most probative evidence of record does not support a rating in excess of 40 percent for the Veteran’s low back disability at any time during the appeal period. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.