Citation Nr: 21024771 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-06 975 DATE: April 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with mixed anxiety and depressed mood circadian rhythm sleep-wake disorder (claimed as PTSD); is dismissed. Entitlement to an increased disability rating for bilateral pes planus with hallux valgus of the left foot, rated as 30 percent disabling from September 24, 2015 to January 24, 2021, and 50 percent thereafter is denied. Entitlement to an increased disability rating for osteoarthritis and strain of the lumbar spine rated as 10 percent disabling from September 24, 2015 to January 1, 2020, 20 percent disabling from January 2, 2020 to January 24, 2021, and 40 percent disabling thereafter is denied. FINDINGS OF FACT 1. In the February 10, 2021 rating decision, the RO granted the Veteran’s claim for an acquired psychiatric disability and there no longer remains a case or controversy before the Board. 2. From September 28, 2014 to January 24, 2021, the Veteran’s bilateral pes planus with hallux valgus of the left foot was manifested by symptomatology more nearly approximating severe bilateral pes planus, but not pronounced bilateral pes planus. 3. From January 24, 2021, the Veteran’s bilateral pes planus with hallux valgus of the left foot was manifested by symptomatology more nearly approximating pronounced bilateral pes planus. 4. From September 28, 2014 to January 1, 2020; the Veteran’s osteoarthritis and strain of the lumbar spine is manifest by no worse than forward flexion of 0 to 65 degrees; extension of 0 to 20 degrees; right lateral flexion of 0 to 25 degrees; left lateral flexion of 0 to 25 degrees; right lateral rotation of 0 to 20 degrees; and left lateral rotation of 0 to 30 degrees; and a combined range of motion of the thoracolumbar spine of 195 degrees. 5. From September 28, 2014 to January 1, 2020; the Veteran’s osteoarthritis and strain of the lumbar spine did not result in prescribed bedrest by a medical doctor. 6. From January 2, 2020 to January 24, 2021; the Veteran’s osteoarthritis and strain of the lumbar spine is manifest by no worse than forward flexion of 0 to 45 degrees; extension of 0 to 10 degrees; right lateral flexion of 0 to 15 degrees; left lateral flexion of 0 to 15 degrees; right lateral rotation of 0 to 15 degrees; and left lateral rotation of 0 to 15 degrees; and a combined range of motion of the thoracolumbar spine of 115 degrees. 7. From January 25, 2021; the Veteran’s osteoarthritis and strain of the lumbar spine is manifest by no worse than forward flexion of 0 to 10 degrees; extension of 0 to 5 degrees; right lateral flexion of 0 to 5 degrees; left lateral flexion of 0 to 5 degrees; right lateral rotation of 0 to 5 degrees; and left lateral rotation of 0 to 5 degrees; and a combined range of motion of the thoracolumbar spine of 35 degrees. 8. From January 25, 2021; the Veteran’s osteoarthritis and strain of the lumbar spine does not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for dismissal of the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with mixed anxiety and depressed mood circadian rhythm sleep-wake disorder (claimed as PTSD); have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an increased disability rating for bilateral pes planus with hallux valgus of the left foot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5276. 3. The criteria for an increased rating for osteoarthritis and strain of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1986 until his honorable retirement in April 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the August 2015, March 2016, and April 2017 rating decisions by the Muskogee, Oklahoma Regional Office (RO) of the United States Department of Veterans Affairs (VA). In December 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Muskogee, Oklahoma. A transcript of the hearing has been associated with the record on appeal. In July 2019, the Board remanded the case to the RO for further development. In October 2020, the Board once again remanded the case to the RO for further development. 1. Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with mixed anxiety and depressed mood circadian rhythm sleep-wake disorder (claimed as PTSD) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In the present case, the Veteran’s appeal has been granted by the RO prior to the final adjudication of the Board. Therefore, the Veteran’s claim is dismissed as moot. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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 military 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 2. Entitlement to a disability rating for bilateral pes planus with hallux valgus of the left foot in excess of 30 percent from September 24, 2015 to January 24, 2021 and 50 percent thereafter. 3. The Veteran asserts that he is entitled to an increased disability rating for his bilateral pes planus with hallux valgus of the left foot. Diagnostic Code 5276 provides that for mild flatfoot, with symptoms relieved by built-up shoe or arch support, a noncompensable disability rating is warranted. Moderate acquired flatfoot, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet is rated as 10 percent disabling when either bilateral or unilateral. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated as 20 percent disabling for a unilateral disability; and is rated as 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendon Achilles on manipulation which is not improved by orthopedic shoes or appliances is rated as 30 percent disabling for a unilateral disability; and is rated as 50 percent disabling for a bilateral disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The criteria in Diagnostic Code 5276 are not conjunctive. “Cases in which the Court has indicated that 38 C.F.R. § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive.” Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Dyess v. Derwinski, 1 Vet. App. 448 (1991) (holding that 38 C.F.R. § 4.21 specifically applies to Diagnostic Code 5276). Prior to January 25, 2021 The Veteran was afforded a VA examination in January 2016. The January 2016 VA examiner found that the Veteran’s bilateral pes planus with hallux valgus of the left foot did not produce marked pronation, extreme tenderness of the plantar surfaces of the feet, nor marked inward displacement and severe spasm of the tendon Achilles on manipulation. See January 2016 VA examination pp. 5-6. The Veteran was afforded a second VA examination in February 2017. The February 2017 VA examiner found that the Veteran’s bilateral pes planus with hallux valgus of the left foot did not produce marked pronation, extreme tenderness of the plantar surfaces of the feet, nor marked inward displacement and severe spasm of the tendon Achilles on manipulation. See February 2017 VA examination pp. 5-6. The Veteran was afforded a third VA examination in January 2020. The January 2020 VA examiner found that the Veteran’s bilateral pes planus with hallux valgus of the left foot did not produce marked pronation, extreme tenderness of the plantar surfaces of the feet, nor marked inward displacement and severe spasm of the tendon Achilles on manipulation. See January 2020 VA examination pp. 5-6. Therefore, the Veteran did not meet the criteria for the higher 50 percent disability rating throughout the entire period on appeal. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From January 25, 2021 The Veteran was afforded a fourth VA examination in January 2021. The January 2021 VA examiner found that the Veteran had marked pronation of his bilateral feet, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendon Achilles on manipulation. Therefore, the Board finds that the Veteran meets the schedular criteria for his assigned 50 percent disability rating from the date of the January 2021 VA examination, the date entitlement arose. As noted above, the Veteran’s bilateral pes planus with hallux valgus of the left foot was awarded a 50 percent disability rating effective January 25, 2021 under Diagnostic Code 5276 for bilateral pes planus with hallux valgus of the left foot, which is the maximum disability rating available under this Diagnostic Code. The Veteran has not asserted, nor does the evidence suggest, that this rating does not adequately contemplate his symptoms; he has provided no further argument as to the disability rating since its increase in the February 2021 rating decision. 38 C.F.R. § 3.321(b)(1). This claim is accordingly denied. 4. Evaluation of service-connected lumbar spine disability, rated as 10 percent disabling from September 24, 2015 to January 1, 2020, 20 percent disabling from January 1, 2020 to January 24, 2021, and 40 percent disabling thereafter. The Veteran asserts that he is entitled to a higher disability rating. However, it is unclear as to the basis of the Veteran’s assertion. Prior to January 2, 2020, the Veteran’s osteoarthritis and strain of the lumbar spine is rated under 38 C.F.R. § 4.71a, 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 specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5243 provides that Intervertebral Disc Syndrome (IVDS) is to be rated either 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted 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 rating is warranted 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted 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, Formula for Rating IVDS Based on Incapacitating Episodes. 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. Id. at Note 1. From January 2, 2020; the Veteran’s osteoarthritis and strain of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. From September 24, 2015 to January 1, 2020 The question for the Board is if the Veteran’s osteoarthritis and strain of the lumbar spine warranted a 20 percent disability rating (or higher) between September 24, 2015 and January 1, 2020 under either Diagnostic Code 5242 or Diagnostic Code 5243. The Veteran was afforded a VA examination in November 2015. The November 2015 VA examiner found that the Veteran’s osteoarthritis and strain of the lumbar spine produced forward flexion of 0 to 80 degrees; extension of 0 to 20 degrees; right lateral flexion of 0 to 25 degrees; left lateral flexion of 0 to 25 degrees; right lateral rotation of 0 to 20 degrees; and left lateral rotation of 0 to 30 degrees; and a combined range of motion of the thoracolumbar spine of 200 degrees. Finally, the November 2015 VA examiner found that the Veteran did not have ankylosis (neither favorable nor unfavorable). The Board notes that the Veteran reported occasional flare ups of pain that comes and goes, making it difficult when waking up in the morning because he has to be careful in how he moves and is very sore at times. However, the Veteran did not provide any information concerning additional loss to range of motion because it depends on the type of activity being performed and the severity of the pain experienced by the Veteran. The Veteran was afforded a second VA examination in February 2017. The February 2017 VA examiner found that the Veteran’s osteoarthritis and strain of the lumbar spine produced forward flexion of 0 to 65 degrees; extension of 0 to 20 degrees; right lateral flexion of 0 to 25 degrees; left lateral flexion of 0 to 30 degrees; right lateral rotation of 0 to 25 degrees; and left lateral rotation of 0 to 30 degrees; and a combined range of motion of the thoracolumbar spine of 195 degrees. Finally, the November 2015 VA examiner found that the Veteran did not have ankylosis (neither favorable nor unfavorable). The Board notes that the Veteran did not report flare-ups during the February 2017 VA examination. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for osteoarthritis and strain of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the occasional flare-ups would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the November 2015 VA examiner found that the Veteran does have IVDS but the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The November 2015 VA examiner found that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest by a physician and treatment by a physician within the prior 12 months. As noted above, regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity radiculopathy associated with osteoarthritis and strain of the lumbar spine and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for osteoarthritis and strain of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From January 2, 2020 to January 25, 2021 The question for the Board is if the Veteran’s osteoarthritis and strain of the lumbar spine warranted a disability rating greater than 20 percent between September 24, 2015 and January 1, 2020 under Diagnostic Code 5242. The Veteran was afforded a third VA examination in January 2020. The January 2020 VA examiner found that the Veteran’s osteoarthritis and strain of the lumbar spine produced forward flexion of 0 to 45 degrees; extension of 0 to 10 degrees; right lateral flexion of 0 to 15 degrees; left lateral flexion of 0 to 15 degrees; right lateral rotation of 0 to 15 degrees; and left lateral rotation of 0 to 15 degrees; and a combined range of motion of the thoracolumbar spine of 115 degrees. Finally, the January 2020 VA examiner found that the Veteran did not have ankylosis (neither favorable nor unfavorable). The Board notes that the Veteran did not report functional limitations due to flare-ups during the January 2020 VA examination. However, the Veteran did report flare-ups once or twice per week from moving the wrong way, quickly moving, or standing and walking for a prolonged period of time. However, the Veteran reported that the pain, weakness, fatigability, or incoordination does not significantly limit functional ability during flare-ups. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for osteoarthritis and strain of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that occur several times per week would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the most recent VA examination reflects that the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity radiculopathy associated with osteoarthritis and strain of the lumbar spine and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for osteoarthritis and strain of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From January 25, 2021 The question for the Board is if the Veteran’s osteoarthritis and strain of the lumbar spine warranted a disability rating greater than 40 percent from January 25, 2021 under Diagnostic Code 5242. The Veteran was afforded a fourth VA examination in January 2021. The January 2021 VA examiner found that the Veteran’s osteoarthritis and strain of the lumbar spine produced forward flexion of 0 to 35 degrees; extension of 0 to 5 degrees; right lateral flexion of 0 to 10 degrees; left lateral flexion of 0 to 10 degrees; right lateral rotation of 0 to 10 degrees; and left lateral rotation of 0 to 10 degrees; and a combined range of motion of the thoracolumbar spine of 80 degrees. Finally, the January 2020 VA examiner found that the Veteran did not have ankylosis (neither favorable nor unfavorable). The Board notes that the Veteran did not report functional limitations due to flare-ups during the January 2021 VA examination that produced an estimated forward flexion of 0 to 10 degrees; extension of 0 to 5 degrees; right lateral flexion of 0 to 5 degrees; left lateral flexion of 0 to 5 degrees; right lateral rotation of 0 to 5 degrees; and left lateral rotation of 0 to 5 degrees; and a combined range of motion of the thoracolumbar spine of 35 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for osteoarthritis and strain of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted estimated functional loss, the degree of additional limitation reflected by the Veteran’s estimates would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As noted above, regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity radiculopathy associated with osteoarthritis and strain of the lumbar spine and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of that assigned for service-connected osteoarthritis and strain of the lumbar spine. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.