Citation Nr: 21014865 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-24 711A DATE: March 16, 2021 ORDER Entitlement to a compensable evaluation for irritable bowel syndrome (IBS) from June 13, 2010 to September 27, 2019 is denied. Entitlement to an increased evaluation in excess of 30 percent for irritable bowel syndrome (IBS) from September 27, 2019 is denied. Entitlement to an increased evaluation in excess of 30 percent for herniated cervical disc disease and degenerative arthritis, status post-surgical repair and fusion, is denied. FINDINGS OF FACT 1. For the period from June 13, 2010 to September 27, 2019, the weight of the evidence is against a finding that the Veteran’s IBS symptoms are moderate; with frequent episodes of bowel disturbance with abdominal distress, or worse 2. From September 27, 2019, the Veteran’s IBS is manifested by no more than severe symptoms, with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 3. The Veteran’s herniated cervical disc disease and degenerative arthritis, status post-surgical repair and fusion does not manifest with ankylosis; or incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for IBS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.114, Diagnostic Code 7913. 2. The criteria for entitlement to a disability rating in excess of 30 percent for IBS have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § 3.400 (o), 4.114, Diagnostic Code 7319. 3. The criteria for an evaluation in excess of 30 percent for herniated cervical disc disease and degenerative arthritis, status post-surgical repair and fusion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Navy from August 1999 to June 2010. This matter is on appeal from a May 2011 rating decision. The Board remanded this appeal in May 2018 for additional development. During the pendency of the appeal, a July 2020 rating decision increased the evaluation of the Veteran’s IBS to 30 percent effective from September 27, 2019 and increased the evaluation of the Veteran’s herniated cervical disc disease and degenerative arthritis, status post-surgical repair and fusion to 30 percent effective from June 13, 2010. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran’s IBS and cervical disability remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Board has recharacterized the issues on appeal as entitlement to a compensable rating for IBS from June 13, 2010 to September 27, 2019; and increased rating in excess of 30 percent for IBS from September 27, 2019; and an increased evaluation in excess of 30 percent for herniated cervical disc disease and degenerative arthritis, status post-surgical repair and fusion. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of 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. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27 ; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Irritable bowel syndrome (IBS) The Veteran is currently service connected for IBS with a non-compensable evaluation from June 13, 2010 to September 27, 2019 under Diagnostic Code (DC) 7913; and a 30 percent evaluation from September 27, 2019 under Diagnostic Code 7319. Under Diagnostic Code 7913, a noncompensable rating is warranted for mild symptomatology, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disabling rating is warranted for moderate symptomatology with frequent episodes of bowel disturbance with abdominal distress. A 30 percent disability rating is warranted for severe symptomatology with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Under Diagnostic Code 7319, which assigns a 0 percent disability rating for mild IBS with disturbances of bowel function with occasional episodes of abdominal distress. Moderate IBS, with frequent episodes of bowel disturbance with abdominal distress, is rated 10 percent disabling. Severe IBS, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated 30 percent disabling. 38 C.F.R. § 4.114. The Board also notes that a 30 percent disability rating is the maximum rating allowable under Diagnostic Code 7319. The Board observes that the words “mild,” “moderate,” “moderately severe,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran was afforded an October 2010 VA examination. The Veteran reported symptoms of diarrhea occurring intermittently at moderate severity 3 times a week; the Veteran stated that he would sometimes experience multiple episodes for one day that then stopped. The examiner found the Veteran with no weight loss or gain, and that the Veteran did not receive treatment. The Veteran also reported symptoms of abdominal pain occurring 3 times a week that would last 15 minutes. The examiner found the Veteran did not experience abdominal distress, abdominal cramps, ulcerative colitis, and no hospitalizations related to IBS. In a June 2011 notice of disagreement (NOD), the Veteran asserted frequent episodes of bowel disturbance. Review of the medical treatment record shows in March 2013 the Veteran reported symptoms of IBS and that he was undergoing a lot of stress. In December 2013 the Veteran requested a gastrointestinal consultation due to persistent abdominal pain; the treating provider noted the Veteran did not appear for two prior gastrointestinal consultations which the Veteran explained missing one due to a car accident. The Veteran reported having loose stools associated with pain occurring after bowel movement within 30 minutes after his meal. The provider noted that pain was poorly described, and the Veteran denied nausea and vomiting. In April 2014 the Veteran reported irritable bowels and diarrhea occurring 3 times a week. The Veteran was afforded a June 2014 VA examination. The Veteran reported a history of lactose intolerance and that since 2010 his GI symptoms had improved. The Veteran stated that his bowel movements “start out formed but end up loose most of the time.” The Veteran reported symptoms of infrequent episodes of constipation, most recently 5 weeks ago where he had no bowel movement for 12 hours. The examiner found the Veteran did not require continuous medication to control his intestinal condition or had any surgical treatment. The examiner noted that laboratory testing showed normal protein, no anemia, and stable body weight with no evidence of malnutrition. The examiner did not find evidence of signs or symptoms attributable to non-surgical or non-infections intestinal condition and no evidence of episodes of bowel disturbance with abdominal distress, exacerbations or attacks of the intestinal condition. The examiner found no evidence of malnutrition, serious complications or other general health effects attributable to intestinal conditions. The examiner noted the Veteran’s body weight in the past year increased by 10 pounds. The examiner found the Veteran’s condition did not result in occupational impact. The examiner remarked that review of the medical treatment record showed multiple “now shows” for gastrointestinal consultations “for reasons unknown.” The examiner noted the Veteran reported improvement in his condition and currently experiences alternation of his stool consistency without chronic constipation or chronic diarrhea. The examiner found the Veteran without objective residuals and that his symptoms were “most likely aggravated by pre-existing dietary intolerances including lactose as reported by the Veteran.” In a March 2015 review of systems the Veteran denied nausea, vomiting or diarrhea. In a March 2016 statement from the Veteran’s representative, the representative asserted the Veteran suffered from frequent bowel disturbance, abdominal distress, diarrhea, and constipation. In December 2016 the Veteran reported his IBS was managed by medication but did not provide specifics on the frequency of treatment. In February 2018 the Veteran reported no nausea, vomiting or diarrhea; the Veteran’s weight was found to be normal. In July 2019 the Veteran complained of chronic abdominal bloating with a “gassy feeling”; the treating provider found no symptoms of nausea, diarrhea or vomiting. The Veteran was afforded a September 2019 VA examination. The Veteran reported current symptoms of diarrhea and constipation. The Veteran reported functional impairment where the Veteran is “spending a lot of time utilizing the bathroom and gets grief at work.” The examiner found the Veteran’s intestinal condition did not require continuous medication and did not have surgical treatment. The examiner found the Veteran with symptoms of diarrhea where “most of the time has loose stools” with occasional constipation; alternating diarrhea and constipation that “alternates between loose stools most of the time”; and abdominal distension where the Veteran “gets very bloated all the time” and experiences abdominal pain all day. The examiner found the Veteran experienced occasional episodes of bowel disturbance with abdominal distress. The examiner also found the Veteran with episodes of exacerbation and/or attacks of the intestinal condition where the Veteran experienced bloating, abdominal pain, loose stools and had 4 to 6 bowel movements a day. The examiner found no evidence of weight loss, malnutrition or other health complications. The examiner found the Veteran’s intestinal condition resulted in occupational impact where the Veteran has missed or had to leave work due to IBS symptoms or had problems with productivity due to frequent bowel movements and use of the bathroom. After review of the evidence, the Board finds that a compensable rating for IBS for the period between June 13, 2010 to September 27, 2019 is not warranted. Although the Veteran and representative have stated that the Veteran experiences frequent bowel disturbance, abdominal distress, diarrhea and constipation, the medical treatment record does not show frequent episodes of bowel disturbance or diarrhea. Review of the VA examinations in October 2010 shows the Veteran reported intermittent episodes of diarrhea and no findings of frequent episodes of bowel disturbance. Review of the June 2014 VA examination shows the examiner found no episodes of bowel disturbance, abdominal distress, exacerbation or other signs or symptoms related to the Veteran’s intestinal condition other that reported infrequent episodes of constipation and some inconsistency of bowel movement. Here, the evidence of record during the period from June 13, 2010 to September 27, 2019 indicates that the Veteran’s IBS does not result in moderate symptomatology with frequent episodes of bowel disturbance with abdominal distress; or alternating diarrhea and constipation. According, a compensable rating for IBS is not warranted. The Board next finds that after a review of record, an increased evaluation in excess of 30 percent for IBS since September 27, 2019 is not warranted. The Board notes that Diagnostic Code 7319 provides a maximum 30 percent rating for IBS. Comparing the level of severity and symptomatology of the Veteran’s IBS with the established criteria found in the rating schedule, the Board finds that the schedular criteria adequately contemplate all the symptoms attributable to IBS. The evidence does not otherwise show that the Veteran’s IBS is manifested by symptoms different from, or more severe than, what is contemplated by the rating criteria set forth in Diagnostic Code 7319. The September 2019 VA examiner specifically commented that the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to the IBS. Thus, the Board finds that the 30 percent rating under Diagnostic Code 7319 adequately considers the specific nature of the Veteran’s disability. The Board also notes the Veteran has not asserted that referral for extraschedular consideration is warranted, and the record does not otherwise reasonably raise the matter. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Therefore, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321 (b); Thun, 22 Vet. App. at 116. The Board has considered the Veteran’s statements regarding the severity of the Veteran’s IBS. However, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner’s findings. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, the Board finds the preponderance of the evidence is against a finding for a compensable evaluation for the Veteran’s IBS for the period from June 13, 2010 to September 27, 2019, and against a finding for an increased evaluation in excess of 30 percent for the period since September 27, 2019. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Herniated cervical disc disease and degenerative arthritis, status post-surgical repair The Veteran is currently service connected for herniated cervical disc disease and degenerative arthritis, status post-surgical repair evaluated at 30 percent under Diagnostic code 5242-5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Board notes that during the pendency of the appeal, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, the diagnostic codes used to evaluate the Veteran’s cervical disability was not changed. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. See also Plate V, 38 C.F.R. § 4.71a. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. As the Veteran’s cervical spine is manifested by degenerative arthritis, Diagnostic Code 5243 (the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes) also applies. 38 C.F.R. § 4.71a. This Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and, a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. 38 C.F.R. § 4.71a. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). As stated in Correia v. McDonald, 28 Vet. App. 158 (2016), the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Indeed, Correia stated “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Id. at 9. The U.S. Court of Appeals for Veterans Claims further held that 38 C.F.R. § 4.59 required that all VA examination reports: “(1) carefully note facial expression or wincing on pressure or manipulation and relate that to the affected joint; (2) carefully note crepitation in the soft tissues or joint structures; and (3) test for pain throughout range of motion in various ways.” The Veteran was afforded an October 2014 VA examination. The Veteran reported the onset of his condition in 2004 and stated that his condition has improved since. The Veteran reported that he had no pain; stiffness; weakness; and fatigue. The Veteran denied flareups or functional impairment. Upon physical examination, the examiner found the Veteran’s range of motion (ROM) within normal limits with no loss of motion with repetition. The Veteran demonstrated full strength with no guarding and no evidence of IVDS. Review of the medical treatment shows in April 2011 the Veteran reported pain in his neck between the shoulder blades. In an October 2011 NOD the Veteran asserted painful motion of the neck. In an April 2012 x-ray, the treating provider noted the Veteran’s cervical vertebrae was in satisfactory alignment with unremarkable soft tissue. The provider noted anterior fixation of the C3-C4 and C5-C7 and the hardware was observed to be intact. In June 2012 the Veteran complained of chronic neck pain. The treating provider noted that x-ray testing showed the Veteran’s cervical condition was stable post-operation. In January 2013 the Veteran reported aching and tightness of the neck and in December 2013 the Veteran reported intermittent exacerbations of pain. In January 2014 the Veteran reported cervical issues to include acute pain, numbness and decreased ROM. In a separate January 2014 emergency room visit, the treating provider noted the Veteran had made 3 emergency room visits in the past 20 days relating to neck and shoulder pain. A January 2014 MRI test found cervical neck pain with evidence of myelopathy and annular tear and compression of the C7-T1. In April 2014 the treating provider noted that surgery was discussed but not aggressively advocated. The Veteran reported aching and tightness of the neck. The treating provider noted a limited examination was performed “secondary to artifacts and hardware” but observed mild decreased ROM in “all planes” without specific measurements. In an April 2014 physical therapy initial evaluation, the Veteran reported a C7-T1 disc rupture and stated that he was trying to avoid a third surgery. The Veteran reported symptoms of pain, tension, and spasm in the posterior/lateral cervical region that was aggravated by transitional movements and standing. Upon physical examination, the Veteran’s flexion was measured at 12 degrees and combined ROM was 159 degrees. In a May 2014 physical therapy discharge report, the treating provider noted that after 7 visits the Veteran reported no change in symptoms of bilateral cervical pain; the Veteran stated that the pain “seems to move” was not predictable or correlated with any specific activity. Upon physical examination, the Veteran’s flexion was measured at 20 degrees and combined ROM was 194 degrees. The Veteran was afforded a June 2014 VA examination. The examiner noted prior to examination there was mild functional limitation with no deformity, misalignment, tenderness, edema, redness, spasms, painful motion, abnormal movement, guarding, fatigue, lack of endurance, weakness or abnormal weight bearing. The examiner noted that review of the medical treatment record shows the Veteran’s treatment with physical therapy indicated improvement in range of motion and strength but no reported improvement in pain. The Veteran stated his belief that another surgery may be required. The Veteran reported symptoms of constant shooting pain into his arms from the neck. The Veteran stated, “I can do most anything (for example sweep or wash dishes, put clothes away on top closet shelf and all ADLs), but it is painful while I’m doing it.” The Veteran denied any flareups. Upon physical examination, the Veteran’s flexion was measured at 20 degrees with a combined ROM of 225 degrees. Pain was noted on movement except during lateral flexion. The Veteran was able to perform repetitive testing without additional loss of motion but was noted with functional impairment in pain and reduced movement. The examiner found no evidence of ankylosis or IVDS. The examiner did not find that the Veteran’s cervical disability impacted his ability to work. In a July 2014 statement, the Veteran stated that he had surgery in 2008 to have a “plate placed into my neck”; asserted “this is indeed a textbook example of ankylosis”; and stated that his condition rendered him in “more pain then you could ever imagine.” The Veteran noted that he had second surgery in 2009 to put a “false disc between the C3-C4”. The Veteran described the stiffness or lack of maneuverability was a result from his 2008 surgery and assert that he was “now in more pain than I have ever been in my life” and currently awaiting a third surgery. The Veteran stated that his disability eliminates the capability to do things “the average person takes for granted”; the Veteran stated that he was unable to cut the grass, comfortably carry more than 20 pounds, exercise “in the manner that I used to”, be exposed to prolonged sunlight, or comfortably reach the top shelves to remove or place something. In October 2014 the Veteran underwent a foraminotomy procedure. In November 2014 the Veteran complained of repetitive neck pain and his cervical hardware was observed to be stable. In July 2015 the Veteran was noted to be undergoing physical therapy and reported continued spasms. The treating provider also noted that the Veteran was increasing activities. Upon physical examination, the Veteran’s cervical flexion was measured at 20 degrees with limited left and right side-bending at less than 20 degrees. In August 2015 the Veteran requested a consultation to evaluate persistent neck and arm pain. The Veteran stated that physical therapy was not helping and felt it was making his symptoms worse. The Veteran requested a functional capacity statement. In December 2015 the Veteran was afforded a functional capacity evaluation. The treating provider found the Veteran demonstrated the ability to work at a light to partial medium physical level with a limitation of lifting 10 pounds over his shoulder. The provider noted the Veteran was able to perform dynamic standing up to one-third of the day or 29 minutes maximum; walking for one-third of the day; and siting one to two-thirds of the day or 57 minutes maximum. In April 2016 the Veteran was noted to be doing “remarkably better”, “graduated” and doing home weights where he was reported to be lifting 40 pounds per arm. The Veteran expressed his wish to return to work and apply for a position at the post-office. The provider reviewed the job description and found the Veteran able to do the physical essential aspects of the job other than a limitation that he only lifts more than 50 pounds intermittently. In a December 2016 VA medical center (VAMC) initial visit, the Veteran was seen for an initial visit as he recently moved. The treating provider noted the Veteran with limited cervical ROM due to neck surgeries. In April 2017 the Veteran reported chronic neck and shoulder muscle spasms that caused headaches. In February 2018 review of the Veteran’s systems found no tenderness or stiffness of the neck. In July 2019 the Veteran complained of chronic neck pain and states that he uses medication and drinks wine to help with the pain. The Veteran was afforded a September 2019 VA examination. The Veteran reported symptoms of chronic pain between the shoulders, muscle spasms in the mid-trapezius, and shooting pain from his right shoulder to elbow. The Veteran stated that his symptoms caused depression, constant pain, inability to do prolonged sitting and standing, grumpiness, and inability to focus. The Veteran reported daily flareups of 30 to 60 minutes that are precipitated by sitting in an uncomfortable chair; prolonged sitting or standing; excessive walking; driving; house cleaning; or carrying more than 20 pounds. The Veteran reported functional impairment where he stated that he cannot turn his head completely to the left or right; look all the way up or down; or do certain exercises. Upon physical examination of the Veteran, the Veteran’s flexion was measured at 10 degrees with a combined ROM of 125 degrees. The Veteran experienced pain with flexion, extension, right lateral flexion and left lateral rotation. The examiner found no evidence of pain with weight bearing. The Veteran was able to perform repetitive testing. Additional loss of motion was observed however the Veteran’s flexion was unchanged. The examiner found the examination was medically consistent with the Veteran’s statements describing functional loss after repetitive use and during flareups. The examiner was unable to describe the range of motion, finding that “there is no conceptual or empirical basis for making such a determination without directly observing function under repeated use over time and flareup condition… there is a lack of supporting objective documentation in the file… there is no peristent evidence of record, considered to be valid or reproducible for rating purposes, that indicates a loss of function during these conditions.” The examiner found no evidence of ankylosis. The examiner found the Veteran with IVDS of the cervical spine but no evidence of any episodes of acute signs and symptoms due to IVDS. The examiner found the disability resulted in functional impact the Veteran would have difficulty with prolonged sitting more than 30 minutes; prolonged standing for 15 minutes; excessive walking; and driving. In a September 2020 statement, the Veteran stated that after his third surgery it was impossible for him to “bounce back to my normal energetic self” and after a “difficult convalescing period”, felt that he would never be able to fully recuperate. The Veteran stated that he experienced pain 24 hours a day at 7 days a week with muscle spasms, knots in his shoulders, inflamed spine, and twitching hand. The Veteran stated that his spinal cor was permanently, severely narrowed and would only get worse every year. After review of the evidence, the Board finds that an evaluation in excess of 30 percent for the Veteran’s cervical disability is not warranted. The Board notes that for a 40 percent evaluation, the Veteran must demonstrate unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a , Diagnostic Code 5242. Such impairment was not documented in the VA examinations of record to include the most recent September 2019 examination, as the examiners found the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned 30 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. The Board also notes that September 2019 VA examiners stated that the Veteran reported having flare-ups as he had difficulty with carrying more than 20 pounds, prolonged sitting, standing and walking. While the September 2019 VA examiner did not provide range of motion estimates in degrees regarding flare-ups or after repetitive use over time, such is understandable as the examiners explained that an estimate could not be provided and would be speculative as the examination was not performed during a flare-up or after repetitive use over time and dependent on the severity of the flareup or how strenuously the joints were used. The Board finds these explanations adequate for why the examiners could not offer range of motion estimates. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication of such by the examiners or report of such by the Veteran, neither of which is present in this case. The Board does note the September 2019 examiner reported that pain did result in loss of motion in repeated use over time, with overall loss of 10 degrees of motion in the Veteran’s extension and left lateral flexion; however, the examiner did not find evidence of ankylosis. The Board acknowledges that the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that he has functional impairment, pain and limited motion as demonstrated by the VA examinations. See DeLuca, supra. The Board further finds that the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 30 percent. The Board notes that the Court of Appeals for Veterans Claims (CAVC or the Court) has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the “Secretary has persuasively argued that such an interpretation would lead to absurd results.” Id. at 43. Indeed, nothing in the case law supports the contention that a Veteran should be given maximum disability ratings simply because he or she may experience pain throughout the range of motion. Id. at 43. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss and it is the presence of this functional loss that is the relevant question in assigning disability ratings. Id. As explained above, although there may be pain on all movement as found in the September 2019 VA examination, there is no objective evidence that the Veteran’s pain results in additional functional loss that would warrant an increased schedular rating during this period. The Veteran’s statements of limitations are deemed credible and probative evidence, but such evidence does not show that any additional limitation due to pain does not more nearly approximate a finding of forward flexion of the thoracolumbar spine less than 30 degrees; or, favorable ankylosis of the entire cervical spine. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202 ; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran’s functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. Regarding an evaluation in excess of 20 percent based on IVDS and incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The October 2010 and June 2014 VA examiners did not find the Veteran with IVDS. The September 2019 VA examiner found the Veteran with IVDS but with no incapacitating episodes. Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran’s service-connected cervical disability because the evidence of record during the appeal period does not document the Veteran with IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. See 38 C.F.R. § 4.71, Diagnostic Code 5243. As such, the preponderance of the evidence is against the award of a rating in excess of 30 percent for the Veteran’s herniated cervical disc disease and degenerative arthritis, status post-surgical repair. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.