Citation Nr: 21015173 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-18 254 DATE: March 16, 2021 ORDER Entitlement to a rating in excess of 20 percent, prior to March 26, 2018, and in excess of 40 percent thereafter, for intervertebral disc syndrome is denied. FINDINGS OF FACT 1. Prior to March 26, 2018, the Veteran did not exhibit forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. He also does not have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months. 2. As of March 26, 2018, the Veteran did not exhibit unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. CONCLUSIONS OF LAW 1. Prior to March 26, 2018, the criteria for a disability rating in excess of 20 percent for intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1- 4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243. 2. As of March 26, 2018, the criteria for a disability rating in excess of 40 percent for intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1978 to October 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Board determined that the Veteran was not entitled to a rating in excess of 20 percent for chronic low back pain with sacroiliac joint dysfunction and gluteal weakness. The November 2015 Board decision was vacated, in part, by the Court of Appeals for Veterans Claims (Court) in January 2017, pursuant to a Joint Motion for Partial Remand, and the issue of entitlement to a rating in excess of 20 percent for chronic low back pain with sacroiliac joint dysfunction and gluteal weakness was returned to the Board for adjudication. In June 2017, the Board remanded the claim for further development. The Veteran’s appeal was most recently before the Board in September 2019, but was remanded again for additional development. Specifically, the claim was returned to the Agency of Original Jurisdiction (AOJ) with a directive to schedule the Veteran for a VA Back (Thoracolumbar Spine) Conditions Examination to determine the current severity of his back disability. The required examination was completed and associated with the claims file in January 2020. The VA examination is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, an in-person examination, and because it describes his back disability in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In a July 2020 rating decision, the Veteran was assigned a rating of 40 percent, effective March 26, 2018, for intervertebral disc syndrome. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran is currently assigned a 20 percent rating prior to March 26, 2018, and a rating of 40 percent thereafter, under Diagnostic Code (DC) 5242-5243 for intervertebral disc syndrome (IVDS). He was previously rated under DC 5237 for lumbosacral strain. DC 5243 provides that IVDS (preoperatively or postoperatively) should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes is based upon the total duration of incapacitating episodes over the past 12 months. 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. As the record does not contain specific evidence of incapacitating episodes of bed rest prescribed by a physician, the Formula for Rating Intervertebral Disc Syndrome does not apply. Accordingly, the Veteran’s IVDS will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that effective February 7, 2021, the applicable rating criteria for DC 5242 and DC 5243 were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board will consider all applicable criteria in evaluating the Veteran’s claim. The Board observes that VA recently revised DC 5242 to encompass “Degenerative arthritis, degenerative disc disease other than IVDS” while revising DC 5243 as IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). As such, the Board finds that this non-substantive change does not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In addition, as this is a non-substantive change, and as noted above, the Formula for Rating IVDS Based on Incapacitating Episodes does not apply, the Veteran’s disability will continue to be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 evaluation is assignable for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause 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. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Entitlement to a disability rating in excess of 20 percent, prior to March 26, 2018, for intervertebral disc syndrome Prior to March 26, 2018, the Veteran’s IVDS was evaluated in a January 2013 VA Back (Thoracolumbar Spine) Conditions Examination. At the examination, the Veteran was diagnosed with chronic low back strain with sacroiliac joint dysfunction and gluteal weakness and degenerative disc disease of the lumbar spine. The Veteran reported multiple flare-ups of his back disability where he could not sit for longer than 20 minutes or stand for longer than 45 minutes, and had to change positions. He exhibited forward flexion to 80 degrees, with painful motion beginning at 75 degrees. His extension was to 10 degrees, with painful motion at 10 degrees. His lateral flexion was to 30 degrees on the left and right side, with no objective evidence of pain. His lateral rotation was to 20 degrees on the left and 15 degrees on the right, with evidence of pain at 20 degrees and 15 degrees respectively. There was also objective pain on palpation. Repetitive use testing showed flexion to 70 degrees, extension to 5 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. Following repetitive use testing, the Veteran had less movement than normal, excess fatigability, pain on movement, and interference with siting. The Veteran exhibited guarding or muscle spasms that did not result in an abnormal gait. The Veteran’s muscle strength and sensory examination were normal, and there was no muscle atrophy. The Veteran did not have symptoms of radiculopathy and he was not diagnosed with IVDS. The Veteran reported using a cane for locomotion. In a June 2013 statement, the Veteran indicated that he takes days to rest his back and that he constantly seeks help from his wife and kids. He also indicated that lifting was not an option, and that he did not think he would be able to continue his current job. Based on the above described examination, and other probative medical evidence of record, prior to March 26, 2018, the Veteran’s IVDS does not warrant a disability rating in excess of 20 percent. The probative medical evidence of record does not establish forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Even when considering the Veteran’s pain and functional loss, his disability is not more closely described as forward flexion to 30 degrees or less. Moreover, based on the aforementioned range of motion findings, the record shows that the Veteran’s thoracolumbar spine is not fixated or immobile. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). In addition, the January 2013 VA examiner specifically noted that there was no ankylosis of the spine. Therefore, the Veteran has not been shown to have met the criteria for an increased rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also considered whether the Veteran is entitled to a rating in excess of 20 percent under the rating criteria for evaluating intervertebral disc syndrome. However, in this case, the Board finds that these criteria have not been met. There is no indication that the Veteran has intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. In fact, the January 2013 VA examiner noted that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. Thus, the Board finds that a rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 20 percent evaluation, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain on the Veteran’s lumbar spine is contemplated in the currently assigned evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. During the January 2013 VA examination, the Veteran reported multiple flare-ups of his back disability where could not sit for longer than 20 minutes or stand for longer than 45 minutes, however, the evidence shows that he retained functional ability with forward flexion greater than 30 degrees. In addition, although following repetitive use testing, the Veteran had less movement than normal, excess fatigability, pain on movement, and interference with siting, he still retained functional ability with forward flexion to 70 degrees. The Board finds that the effect of pain on the Veteran’s back is contemplated in the currently assigned 20 percent evaluation and that he does not more nearly approximate the criteria for a higher evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation prior to March 26, 2018. The current 20 percent rating is based on evidence showing that the Veteran’s spine disability is manifested by symptoms that include significant pain, flare-ups, and functional loss. The record shows no additional factors, such as atrophy of disuse, which would restrict motion to such an extent that the criteria for a rating in excess of 20 percent, prior to March 26, 2018, would be approximated or met. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Board acknowledges the Veteran’s contention that his IVDS is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 20 percent have been met. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his back disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. As the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent for the Veteran’s back disability, prior to March 26, 2018, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). Entitlement to a disability rating in excess of 40 percent for IVDS, as of March 26, 2018 As noted above, the Veteran was assigned a 40 percent rating for IVDS, effective March 26, 2018. During a March 2018 VA examination, the Veteran was noted to have diagnoses of lumbosacral strain, IVDS, degenerative disc disease with multilevel disc bulge, sacroiliac dysfunction, and gluteal weakness. The examiner noted that there were no flare ups of the back or any functional loss or functional impairment. The Veteran exhibited forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain was noted during the examination; however, it did not result in functional loss. There was no ankylosis noted. The Veteran’s IVDS was most recently evaluated in a January 2020 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). The Veteran’s diagnoses of degenerative arthritis of the spine and IVDS were confirmed. During the examination, the Veteran reported severe pain in his lower back region. The Veteran also reported aches and stiffness in his lower back, and numbness and tingling in his right leg. The Veteran cannot sit for longer than 10-15 minutes nor can he stand or be weight bearing for longer than 20 minutes due to exacerbation of low back, gluteus, and sacroiliac [joint] pain. The Veteran reported multiple flare-ups of his back disability resulting in severe pain occurring daily. He exhibited forward flexion to 25 degrees, extension to 0 degrees, and lateral flexion to 5 degrees on the right and left sides. His lateral rotation was to 25 degrees on the left and 15 degrees on the right with pain. There was objective pain on motion during flexion, extension, lateral flexion, and lateral extension. The examiner noted that the abnormal range of motion contributed to functional loss in that the Veteran was limited in bending and turning when completing activities of daily living. Although pain was noted on the examination, it did not result in or cause functional loss. There was also objective pain on palpation. Repetitive use testing was performed but showed no additional range of motion or functional loss. The Veteran was not examined immediately after repeated use over time or during a flare-up. The examiner noted, “the DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to repeated use over time.” The Veteran demonstrated guarding or muscle spasm that resulted in gait or abnormal spine conditions. Deep tendon reflexes were normal. His muscle strength testing was normal. The Veteran’s sensation for light touch was diminished in his right leg, and he had mild numbness and paresthesias and/or dysesthesias in the right lower extremity. Involvement of the L2/L3/L4 nerve roots was noted. The Veteran’s radiculopathy of the right side was diagnosed as mild. There was no ankylosis of the spine. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition. He was diagnosed with IVDS, but did not have any episodes that required bed rest prescribed by a physician. The Veteran used a brace and cane to assist with locomotion. His disability prevented him from standing or remaining weight bearing for more than 20 minutes, staying seated for longer than 10 to 15 minutes, or being able to lift more than 20 pounds. The examiner noted the Veteran experienced severe pain during flare-ups when performing the aforementioned activities. In an August 2020 statement, the Veteran indicated that he had difficulties performing activities of daily living such as using the toilet, dressing, and showering. He also indicated that there were multiple incidents where he had to leave work, but that his boss was aware and understanding of his disability. Based on the above described examinations, and other probative medical evidence of record, the Veteran’s IVDS does not warrant a disability rating in excess of 40 percent. From March 26, 2018, the Veteran’s IVDS manifested, at worst, in flexion to 25 degrees, with pain on motion, and no ankylosis of the thoracolumbar spine. The probative medical evidence of record does not establish unfavorable ankylosis of the entire thoracolumbar spine. Even when considering the Veteran’s pain and functional loss, his disability is not more closely described as unfavorable ankylosis of the thoracolumbar spine. He does not have ankylosis because he retains motion in his thoracolumbar spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Board has also considered whether the Veteran is entitled to a rating in excess of 40 percent from March 26, 2018, under the rating criteria for evaluating intervertebral disc syndrome. However, in this case, the Board finds that the criteria have not been met. There is no indication that the Veteran has had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months for the period beginning on or after March 26, 2018. The January 2020 VA examiner reported that the Veteran did not have any incapacitating episodes over the past 12 months due to intervertebral disc syndrome. Thus, the Board finds that a rating in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered whether a rating in excess of 40 percent can be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59. The current 40 percent rating from March 26, 2018, is based on evidence showing that the Veteran’s spine disability is manifested by symptoms that include significant pain, flare-ups, and functional loss. However, as noted above, the criteria for a rating in excess of 40 percent requires a finding of unfavorable ankylosis of the entire thoracolumbar spine. The record contains no evidence of actual ankylosis of the spine. Although the Veteran manifests functional impairment, neither the medical nor lay evidence of record suggests the spine is in a fixed position. As the maximum rating for motion loss has been awarded, the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, the claim for a rating higher than 40 percent from March 26, 2018, is denied. Further, the Veteran is currently receiving a 20 percent disability rating for radiculopathy of the right lower extremity caused or aggravated by his service-connected IVDS. Prior to January 16, 2020, the Veteran was assigned a 10 percent rating. The Veteran’s representative has argued that separate disability ratings are warranted for mild radiculopathy of each nerve root affected in the Veteran’s right lower extremity. However, separate compensable ratings are not warranted for each nerve branch, as it would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The evidence shows that the Veteran’s radiculopathy is manifested by numbness, tingling, and pain in his right lower extremity, and have the same functional effects. Therefore, separate ratings for the L2/L3/L4 radicular groups would doubly compensate the Veteran for the same symptomatology and thus result in pyramiding. The symptom cluster, anatomical location, and effects of the disabilities overlap and do not constitute separate and distinct manifestations of a disability warranting separate ratings. The Board acknowledges the Veteran’s contention that his IVDS is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 40 percent have been met. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for a back disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board acknowledges the Veteran’s January 2021 informal hearing presentation (IHP) request for an earlier effective date for the 40 percent rating for IVDS. A request for an earlier effective date is essentially the same as the Veteran’s request for a disability rating in excess of 40 percent, prior to March 26, 2018. In the IHP, the Veteran states that tying the effective date of his increased disability rating for IVDS to the March 2018 examination, later determined in a September 2019 Board Remand to be an inadequate examination, is improper. The Board notes that while the March 2018 examination was inadequate for determining the current severity of the Veteran’s IVDS, the examination was the first attempt to determine the current severity of his IVDS since a January 2013 VA Back Conditions examination. Using the March 2018 examination date as an anchor point for the Veteran’s increased disability is favorable to the Veteran as actual evidence of forward flexion to less than 30 degrees was not obtained until the January 2020 VA exam discussed above. The Board also notes that the Veteran has reported experiencing difficulty in his work as a result of his back disability. However, in his August 2020 statement, he indicated that his boss understands and has been “briefed” on his issues. Thus, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the Veteran’s low back disability, as of March 26, 2018, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.