Citation Nr: 21020805 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-18 670 DATE: April 8, 2021 ORDER Entitlement to an increased evaluation greater than 20 percent for service-connected lumbosacral strain prior to October 29, 2020 is denied. Entitlement to an evaluation of 40 percent, but no higher, for service-connected lumbosacral strain beginning October 29, 2020 is granted. FINDINGS OF FACT 1. Prior to October 29, 2020, the Veteran’s lumbosacral strain manifested as flexion limited to, at most, 50 degrees with pain, with evidence of guarding or muscle spasm, but no evidence of ankylosis or neurological abnormalities. 2. Beginning October 29, 2020, the Veteran’s lumbosacral strain disability has been productive of limitation of motion, pain, and weakness, more nearly approximating limitation of flexion of the thoracolumbar spine to 30 degrees or less when accounting for additional pain during flare ups and the ameliorative effects of medication and the need for physical therapy. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the service-connected lumbosacral strain prior to October 29, 2020 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an evaluation of 40 percent, but no higher, for the lumbosacral strain beginning October 29, 2020 were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1954 through July 1958. The Veteran presented sworn testimony before the undersigned Veterans Law Judge (VLJ) in a January 2019 Board hearing. A transcript has been associated with the claims file. This appeal was initially before the Board in February 2019, wherein a Board decision granted a 20 percent rating prior to August 29, 2017 for the service-connected lumbosacral strain but denied a higher rating for the entire period on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In the course of that appeal, the parties agreed to a September 2019 Joint Motion for Partial Remand (JMPR). As per the parties’ request, the issue was remanded for furnishing a new examination that adequately addresses the functional loss during a flare-up (or, at least opines as to why such an opinion could not be given) and/or additional functional loss and/or limitation of range of motion (ROM). Thereafter, in a June 2020 Board decision, the claim was remanded in accordance with the JMPR instructions, to include obtaining updated VA medical records. The Board finds that an adequate examination was obtained, and the VA records are associated with the claims file. As such, there has been substantial compliance with the directives, and the Board may proceed. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. 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). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7. Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence obtained during, or leading up to, the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal. In such circumstances, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, on the claim. The Veteran argues that his lumbosacral sprain (hereinafter ‘back disability’) has worsened and he should have higher evaluations than as currently awarded. He is in receipt of a 20 percent evaluation, effective October 25, 2016, the date of receipt of his initial application for service connection. The Veteran’s service-connected back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under DC 5242 for degenerative arthritis of the spine with lumbosacral strain. The pertinent regulations for rating a back disability were provided to the Veteran in prior Statements of the Case and will not be repeated. Upon review of the evidence of record, the Board finds a rating in excess of 20 percent prior to October 29, 2020 is not warranted, but in resolving the benefit of the doubt in the Veteran’s favor, beginning October 29, 2020, but no earlier, the back disability warrants a 40 percent disability rating, but no higher. Prior to October 29, 2020 After a review of the evidence, the Board finds that the Veteran’s back disability did not warrant a higher rating than 20 percent for the period on appeal prior to October 29, 2020. VA examinations and VA outpatient treatment records as well as other evidence within the file demonstrated ongoing treatment and complaints of a back disability. However, there were no range of motion findings showing his back was limited by worse than 50 degrees of flexion nor was there evidence of ankylosis of the spine. Additionally, there was no evidence documenting any incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran was first afforded a VA examination in February 2017 to evaluate the severity of his lumbosacral strain. He reported experiencing constant pain in his low back that was aggravated by bending forward and sitting, and that he experienced difficulty sleeping due to pain. No flare ups were reported. The results of range of motion testing reflected he had forward flexion to 65 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees, for a combined range of motion of 145 degrees. The examiner noted he was unable to bend at the waist to reach the ground. There was evidence of pain with weight bearing, but no pain when non-weight bearing, and no pain with passive range of motion. There was no tenderness to palpation. The Veteran experienced no additional limitation of motion following repetitive use testing. Muscle strength testing was normal with no evidence of atrophy, but his knee and ankle reflexes were hypotensive bilaterally. Straight leg raises and sensory testing was normal with no evidence of radiculopathy. There was no ankylosis. The Veteran was afforded a follow-up VA examination to evaluate the severity of his lumbosacral strain in August 2017. He reported constant, severe lower back pain with intermittent pain to the lower extremities. He also reported flare ups of pain when sitting, standing, walking, bending, and lifting. Range of motion testing reflected he had forward flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. His passive range of motion was flexion to 55 degrees, extension to 15 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 15 degrees. The Veteran demonstrated no additional limitation of motion following repetitive use testing. There was pain with weightbearing, non-weight bearing, and passive range of motion. The examiner noted muscle spasm or guarding that did not cause abnormal gait or abnormal spinal contour. All neurological testing was normal, without evidence of radiculopathy. There was no ankylosis. Thereafter, in the January 2019 Board hearing, the Veteran testified that his tailbone has a lot of pain and he is unable to sit back on it but constantly has to lean forward, and that his doctor told him he has a bent tailbone. He reported he has to walk a lot to relieve the pain as sitting aggravates it more. He testified that he takes Tylenol for pain management. Based on the above, as noted in the procedural history, the Board in the 2019 Board decision awarded the Veteran a 20 percent evaluation, but no higher, effective October 2016, the date of receipt of his application for his back disability. Thereafter, as noted, the Veteran appealed the Board’s 2019 decision to CAVC, and the September 2019 JMPR found that the Board erred by failing to provide adequate reasons and bases with regard to the adequacy of the 2017 examinations. Notably, the Board found that all examinations were adequate, but both examiners failed to address whether the Veteran had additional limitation of motion or functional loss due to his reported flare-ups as discussed in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board will address the 2017 examinations for the probative value that they provide in assessing his lumbar spine disability prior to 2020. First, the Board notes that the examiners were limited in providing a medical opinion regarding additional limitation during flare-ups/over repetitive use by the fact that the Veteran either denied flare ups, or did not have a flare-up during the examination, and VA treatment records do not contain any complaints or treatment for the Veteran during a reported back flare-up. The February 2017 examination report indicated that the Veteran denied any flare ups but stated his functional loss due to the pain was that he is unable to sit for long, and the examiner noted that there was no additional loss of motion following repetitive use testing. The August 2017 examiner opined that the Veteran’s flare ups cause additional functional loss due to pain, and that this opinion is medically consistent with the Veteran's statements describing functional loss during flare ups, but he did not provide an opinion as to range of motion. That notwithstanding, the Board finds that remanding for a retrospective medical opinion to determine whether there was further loss of motion of the spine during a flare-up based on the medical and lay history contained in the record is not necessary. Cotta v. Peake, 22 Vet. App. 80 (2008). The Board has reviewed the available medical and lay evidence of record and finds that a retrospective medical opinion is not necessary in this case, as there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA examinations provided prior to 2020 are now at least 4 years old, and it is not reasonable to assume that a medical provider can estimate the extent of limitation of motion caused by flare-ups that occurred over 4 years earlier based on a review of medical and lay evidence. As such, the Board has considered the Veteran’s subjective reports of the limitation and functional impairment caused by flare-ups prior to October 2020. This is further discussed in the analysis contained below. Next, the Board is cognizant that when adjudicating a claim, it must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. Layno v. Brown, 6 Vet. App. 465 (1994). However, here, the Board finds that the Veteran’s statements regarding the severity of his back disability are not consistent with his medical treatment records. For example, in August 2017, at his first orthopedic consult, it was noted that his tailbone hurt him constantly and he complained of mild low back pain and mild neck pain. He also reported that he was going to physical therapy for low back and neck exercises and this seemed to be helping overall. He denied any bowel or bladder symptoms, and he stated that he was able to walk without any significant back or neck pain; but it was noted that his pain increased with sitting but pain decreased with standing and activity. Examination of the upper and lower extremities revealed normal motor strength in all muscle groups as well as normal sensation throughout; reflexes were normal and symmetric; negative Hoffman’s bilaterally; and normal reflexes bilaterally. Examination of the lumbar spine revealed no tenderness to palpation and no step-offs or deformity was noted, but he did have extreme tenderness over his coccyx. In a follow-up later that month, he rated his pain to be 2/10 with limited range of motion in all directions with pain, but no degrees were listed. He reported pain in his tailbone, and he was referred for physical therapy. His August 2017 physical therapy testing revealed his range of motion showed 75 percent, or 68 degrees, of limited flexion with pain and limited strength. September 2017 physical therapy range of motion showed 75 percent, or 68 degrees, of limited flexion with pain and limited strength. In July 2018, it was noted that he has extensive degenerative disease of his spine and a long history of low back pain for which he takes 100 mg of gabapentin three times a day. However, although the medical record noted that he has restricted range of motion, reflexes in the legs were diminished, and he had nocturnal leg cramps, the examiner mostly discussed these issues as pertaining to the Veteran’s cervical (neck) degenerative arthritis, which has not been found or noted to be related to the service-connected back disability. In September 2018, he reported chronic pain in the tailbone and lumbosacral stenosis, and stated that he falls asleep in his zero gravity lounge chair because it is more comfortable on his back, though his sleep is very fragmented due to his chronic lower back pain. In May 2019, the hospital gave him Lidocaine patches and he reported he sometimes uses them twice a day. In August 2019, the Veteran reported worsening back pain and it was noted he ambulated with a cane, but he would not rate the severity of the pain. In September 2019, he denied any new or worsening pain. In March 2020, it was noted that he has back pain that is controlled with 300mg Gabapentin taken three times a day. The Board acknowledges that the Veteran believes that he is entitled to a 100 percent disability rating because of his constant low back pain and pain with sitting, such that he finds relaxing difficult. However, the evidence does not suggest that his pain or difficulty sitting causes limitation of motion that more approximates limited flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine for the higher 40 percent rating prior to October 2020. Further, the Veteran did not report or discuss any flare-ups to his medical providers during this period on appeal, other than during the August 2017 examination, when he reported he has increased pain with sitting, standing, walking, bending, or lifting. However, he reported to his medical providers that walking helps the pain and that it is mostly his tailbone that bothers him when he is sitting or lying down. Regarding this description of flare-ups, combined with the finding that his statements regarding severity/functional impact are not as credible as the contemporaneous medical records, the Board finds that the evidence is not sufficient to provide an increased rating prior to October 2020. Therefore, the Board will rely on the prior VA examinations that did not provide Sharp opinions. They provide the only objective medical evidence regarding the Veteran’s range of motion of his lumbar spine for the period on appeal prior to 2020. Although the 2017 examinations were noted to be partly inadequate in the 2019 JMPR, if the Board were to rely on the medical treatment records alone, the Veteran would be disadvantaged, because he had forward flexion of his spine to at worst 68 degrees during physical therapy sessions, but all other medical records showed improvement and pain severity rated 2/10. Although the examination reports prior to 2020 are limited in the information they provide related to flare-ups and functional impact, when combined with the medical evidence of record that corroborate with the findings in the 2017 examinations, and both examiners stated they reviewed the Veteran’s medical history and his medical records as part of the examination report, the prior examinations do have probative value. Again, the next highest rating for a thoracic or lumbar spine disability requires forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Neither of those criteria are met here. There is no evidence the Veteran’s back disability manifested as forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant an increased 40 percent rating. Results of range of motion testing reflect that, at most, the Veteran’s forward flexion was limited to 50 degrees with pain. There is simply no evidence the Veteran’s forward flexion was limited to 30 degrees or less or that his symptoms were comparable to such even during the reported flare ups. Additionally, there is no evidence of ankylosis noted in any of his medical records, and both the February 2017 and August 2017 VA examinations noted the Veteran did not have ankylosis of the spine. Further, his VA medical treatment records indicate that a 20 percent rating, but no higher, during this time period is warranted. As discussed above, no records showed forward flexion of the thoracolumbar spine 30 degrees or any ankylosis. There is no evidence, objective or lay, that reflects the Veteran’s symptoms are more adequately compensated by a rating greater than 20 percent. These more contemporaneous medical records are far more credible than the statements he makes now, since it is reasonable to expect one would report worsening pain and symptoms of flare ups that cause additional functional loss to their medical providers. As such, the Board finds the medical evidence supports the assignment of a 20 percent evaluation for his back disability prior to October 2020. Given the demonstrated complaints of and treatment for back pain, coupled with the painful motion, the physical therapy, and the medication, the Board finds the Veteran’s service-connected back disability warrants the 20 percent evaluation for this period on appeal, but no higher. There was no medical evidence reflecting the Veteran’s back disability manifested with symptoms comparable to forward flexion of 30 degrees or less, or ankylosis of the lumbar spine. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran’s evaluation was already previously increased to 20 percent based on his subjective reports of pain, spasms, and functional loss, as well as his reports of flare-ups. As discussed above, although the 2017 examiners did not provide an opinion as to limitation of motion during a flare-up prior to the October 2020 examination, the preponderance of the evidence is against finding that the condition would more nearly approximate the higher 40 percent evaluation based on a review of the lay and medical evidence. Even considering his use of pain medication, there is no indication in the claims file that any subjective factors resulted in ankylosis of any kind or forward flexion of 30 degrees or less, as needed for an increased rating under the General Formula, regardless of flare-ups or repetitive motion over time. Rather, the Veteran’s forward flexion was limited at worst to 50 degrees following repetitive use. Even considering his medication usage and reports of flareups, the evidence does not support that his forward flexion limitation would be limited to 30 degrees as required for the 40 percent evaluation. As such, an evaluation in excess of 20 percent is not warranted during this period on appeal. Further, as noted below, the Veteran is being granted a 40 percent evaluation beginning October 29, 2020 based on subjective and objective evidence of worsening and in consideration of his flare ups and medication usage. In order to receive a rating for IVDS Based on Incapacitating Episodes, the back disability would have to result in incapacitating episodes having a duration of at least 4 but less than 6 weeks during a 12-month period. However, there is simply no evidence documenting physician-prescribed bedrest. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician. However, with no medical evidence of record documenting physician-prescribed bedrest, an evaluation is not warranted for IVDS Based on Incapacitating Episodes. Finally, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. The 2019 JMPR found the Board erred by not discussing the February 2017 examination where the Veteran exhibited hypoactive reflexes in his lower extremities. As such, the Board acknowledges that the Veteran reported occasional shooting pain down his legs during his February 2017 VA examination and it was noted he had hypoactive reflexes. However, none of the Veteran’s VA treatment records reflect he has ever been diagnosed with radiculopathy, and both the August 2017 and October 2020 examiners opined he does not have hypoactive reflexes following testing. Moreover, the February 2017, August 2017, and October 2020 VA examinations found no evidence of radiculopathy on physical examination, and his medical records do not indicate or show he has ever been diagnosed with radiculopathy or that his back disability has caused a disability that would warrant a separate rating. In other words, even with the presence of hypoactive reflexes on the February 2017 exam and the Veteran’s complaints at that time, the VA examiner still expressly found no evidence of radiculopathy and did not provide such a diagnosis. Rather, the medical records indicate that he has peripheral neuropathy associated with his non-service-connected diabetes. For example, the June 2017 MRI results revealed the Veteran’s lumbar nerve roots are unremarkable. In October 2017, it was noted he had lumbar spondylosis without a radicular component, that his strength and sensation testing was normal, neurovascularly was intact, and he had a normal gait. The assessment was lumbar spinal stenosis without neurogenic claudication. In December 2017, he reported cervical pain and reported his tailbone/back pain was “most bothersome when he is riding a shuttle and going through bumps” but it was his neck that was worse. Physical examination findings noted he had intact motor, senses, and reflexes. The examiner stated the Veteran does not have any significant radiculopathy or myelopathy. In March 2018, he reported leg pain and cramping in his calves for the last 5 years, but the examiner noted his motor strength was normal, and his gait was normal. The examiner noted the pain “could be due to” the back disability but noted the 2017 MRI was insignificant and the medical evidence was suggestive of “a lower motor neuron phenomemon.” It was also noted that “there is potential that his cramping pain is a statin induced myopathy.” In February 2019, he reported gait instability and occasional pain in his legs, but it was noted that “he has decreased vibratory sense in his feet and an ataxic gait. His exam is most compatible with a vascular gait disorder with peripheral neuropathy.” Accordingly, as there is no evidence the Veteran has been diagnosed with radiculopathy, and as there is also no evidence of other neurological abnormalities such as bowel or bladder impairment – the Veteran explicitly denied having any bladder or bowel impairment in his medical records – a separate compensable rating is not warranted. In summary, the Board concludes the preponderance of the evidence is against assignment of a rating in excess of 20 percent prior to October 29, 2020 for the service-connected back disability. Since October 29, 2020 The Board considered the Veteran’s VA examination and VA medical records, and, beginning October 29, 2020, the Board finds, in giving benefit of the doubt in favor of the Veteran, a 40 percent evaluation, but no higher, is warranted. Specifically, in the October 29, 2020 VA examination, the Veteran reported his back symptoms are getting progressively worse due to increased pain, especially at night. He reported that his pain wakes him from sleep at night and prevents him from going back to sleep; stated that siting aggravates his symptoms; and that he is currently taking Acetaminophen 3 times a day to manage his symptoms. He reported that he has flare-ups of the back that occur daily that are moderate to severe and can last a few hours. He stated the flare-ups are precipitated by prolong sitting and are alleviated by Acetaminophen. Range of motion testing revealed limitation to 35 degrees with forward flexion with pain on examination which causes functional loss. There was no evidence of tenderness on palpation, and there was no additional loss of function or range of motion after repetitive use. The examiner opined that pain and weakness will significantly limit functional ability with repeated use over time and during flare-ups, but there was no additional loss of motion. The examiner marked that the Veteran does not have guarding or muscle spasms but does have additional interference with sitting and standing. His muscle strength testing revealed some resistance, but he does not have muscle atrophy, and his sensory examination and straight leg testing was noted to be normal. The examiner noted that the Veteran had normal reflexes and that he does not have radiculopathy, or any signs or symptoms of radiculopathy. He also does not have ankylosis of the spine or IVDS. He does use a cane constantly for balance. The examiner further considered the 2020 Board remand directives and responded that the Veteran’s examination showed that no hypoactive reflexes were noted and no neurological findings/disabilities and/or radiculopathy were noted on examination. Based on the foregoing, the Board finds the medical evidence supports the assignment of a 40 percent evaluation for his disability beginning October 29, 2020, following the VA examination which exhibited limitation of flexion to 35 degrees with pain, to include after repetitive use testing and flare-ups. Regardless, the Board notes that he reported experiencing daily pain, which was made worse with standing, sitting, bending, and walking, and that he uses a cane. Further, he stated the impact of his condition restricts his functionality due to daily flare-ups. He also has difficulty sleeping due to the pain. Although the Veteran’s limitation of flexion was no worse than 35 degrees with repeated use and flare-ups, as noted, the medical evidence shows that he takes pain medication for his back disability, and a higher rating on the basis of relief provided by medication cannot be denied when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Thus, the Board finds that the Veteran’s back disability more nearly approximates the criteria for a 40 percent rating when considering these reports of worsening pain with activity, the frequency and length of his flare-ups, and his use of pain medication. Given the demonstrated complaints of and treatment for back pain, coupled with the painful motion and functional limitations, the Board finds the Veteran’s service-connected chronic back disability warrants a higher 40 percent evaluation, even though his demonstrated flexion was slightly greater than 30 degrees. See 38 C.F.R. §§ 4. 40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. However, the required manifestations for an evaluation greater than 40 percent are not present. VA treatment records and VA examinations do not show that the Veteran’s spine has been found to be ankylosed, or that he has experienced incapacitating episodes of IVDS having a total duration of at least six weeks with prescribed bed rest from a physician at any time during the period under appeal. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician. Further, as noted above, at no point during the appeal period have there been any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. Although the examiner did not opine as to the February 2017 notation of hypoactive reflexes, the examiner did mark that the Veteran had normal reflexes during the examination and that he does not have radiculopathy. Further, the Veteran has not reported any burning, tingling pain radiating in his legs; explicitly denied having any bladder or bowel impairment in his medical records; and his medical examinations do not show he has radiculopathy. In sum, in resolving the benefit of the doubt in favor of the Veteran, the medical evidence supports an evaluation of 40 percent, but no higher, for the service-connected chronic back disability beginning October 29, 2020, but no earlier. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate 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.