Citation Nr: 21028253 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 09-24 506 DATE: May 10, 2021 ORDER Entitlement to an increased rating in excess of 20 percent from October 15, 2007 for a lumbar back disability is denied. FINDINGS OF FACT For the period from October 15, 2007, the lumbar spine degenerative joint disease disability, originally diagnosed as a lumbosacral strain, is manifested by forward flexion of the thoracolumbar spine more than 30 degrees but not greater than 60 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations not accounted for in other disabilities. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent from October 15, 2007 for a lumbar spine disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1986 to January 1989 and again from January 1991 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran had claimed a worsening of his service-connected lumbar back condition in an October 2007 increased rating claim, and the RO awarded an increase to 20 percent in the September 2008 rating decision on appeal, effective from October 15, 2007. The Veteran filed a notice of disagreement with that higher September 2008 rating for his lumbar back, saying his symptoms were worse than cited in the rating decision. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Veteran testified in a Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2015. A transcript of the hearing has been associated with the record. In May 2015 and November 2018, the Board remanded the issue of the Veteran's service-connected lumbar spine. The directed examinations having been accomplished, the issues are again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was originally certified to the Board with an additional issue: entitlement to a total disability rating based on individual unemployability (TDIU). However, in a May 2017 rating decision, the RO awarded a TDIU effective May 24, 2017. As such, the issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran has been granted TDIU effective from May 24, 2017 as noted above, effective from his initial schedular eligibility date. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that further consideration of an earlier TDIU or any form of SMC is not inferred by the record, and as such will not be discussed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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."). 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Lumbar Spine Disability Legal Standards The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5237 for lumbosacral strain. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id. According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, 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. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2020). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for 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 when there are 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 when there are 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 rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during 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, DC 5243. The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating. The Board will briefly discuss Diagnostic Code 5003 for degenerative arthritis, given that the Veteran has been diagnosed with this for his lumbar back. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5242 is now titled "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." The title of Diagnostic Code 5243 is now "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Id. No other changes in 38 C.F.R. § 4.71a are applicable for this particular appeal. Lumbar Spine Disability Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected degenerative arthritis of the lumbar spine. The Veteran currently has an evaluation of 20 percent for his lumbar disability effective from October 15, 2007. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations he endures on a daily basis, per his lay statements. In the course of the appeal, the Veteran was granted service connection for right lower extremity radiculopathy related to the service-connected lumbar back, with a current rating for the right lower extremity of 20 percent. The Veteran has not appealed the rating for his lower extremity radiculopathy, and as such, they will not be discussed further. The Veteran filed his claim for increased ratings on October 15, 2007. As such, the Board will focus on the disability level of his lumbar spine disability from one year immediately preceding the claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evidence and Analysis The Veteran's lumbar back disability, originally claimed and rated as a lumbosacral strain, was granted service connection with a 10 percent rating effective from July 15, 1991, the first day after the Veteran left active service. On October 15, 2007, the Veteran submitted a claim for an increased rating, saying his back pain with limited back movement and strength had worsened. In a September 2008 rating decision, the RO granted an increased rating to 20 percent effective October 15, 2007, the date of claim for the increased rating. The Veteran filed a notice of disagreement on September 29, 2008, saying that increased rating of 20 percent still did not reflect the level of disability the Veteran believed he was due for his lumbar back disability. The first VA examination pertinent to the period on appeal occurred in December 2007. The examiner diagnosed a lumbosacral strain with degenerative changes and noted there was no spasm, atrophy, guarding, pain with motion, or tenderness. The Veteran's back posture was considered normal with normal symmetry, and no neurological symptoms were noted related to the back disability beyond right side lower radiculopathy, which is now separately rated. Range of motion measurements for forward flexion was to 60 degrees, with pain beginning at 45 degrees. Extension was measured to 30 degrees, with pain beginning at 20 degrees. Left and right lateral flexion was zero to 20 degrees each, and left and right lateral rotation was zero to 30 degrees each. Pain on both active and passive motion was noted. There was no loss of range of motion after 3 repetitions. There was no kyphosis, list, lumbar flattening, scoliosis, or reverse lordosis. The examiner noted the functional impact of the Veteran's back condition as having decreased mobility with problems lifting and carrying. X-rays as part of this examination indicated no IVDS but did indicate mild degenerative changes at T11-T12 and L5-S1. VA provided an MRI in October 2008 as part of the regular treatment for the Veteran's back, which revealed a minimal right foraminal protrusion at L3-L4 causing minimal neural and foraminal stenosis. Lumbar alignment was considered normal. Bony signal was normal and vertebral height was maintained. L4-L5 and L5-S1 revealed mild bilateral facet disease. VA provided an examination in June 2011 for the Veteran's lumbar back disability. A previous diagnosis of degenerative disease of the lumbar back was continued, and the examiner noted the functional impacts limits all of his physical activities. The examiner noted the Veteran's complaints of back pain, characterized by stabbing sensations, and that his response to treatment so far has been poor. Right side numbness in the lower extremity was noted, but no other neurological symptoms were noted that were related to the lumbar back area. No spasm, guarding, tenderness, weakness, or pain on motion was noted. No ankylosis was noted. Range of motion measurements in flexion were to 60 degrees, extension to 25 degrees, left and right lateral flexion, and left and right lateral rotation each to 30 degrees. No IVDS was noted. VA provided another examination in March 2012 for the Veteran's lumbar back. A diagnosis of degenerative joint disease L4-L5 and L5-S1 was made, along with a herniated disc at L3-L4. The examiner noted the Veteran's complaints of lower back pain and also noted the Veteran recently had a total right hip replacement that was expected to create possible temporary stress on the Veteran's lumbar back during the recovery from the hip replacement surgery. Range of motion was measured in flexion to 75 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees each and left and right lateral rotation to 25 degrees each. Pain on movement was noted but there was no guarding or spasm of the lumbar spine. There was localized tenderness to palpation for joints and soft tissue of the lumbar spine. No ankylosis was noted. Muscle strength was five on a scale of five, and no neurological abnormalities were noted on this examination. There was no IVDS noted and in any event, no incapacitating episodes over the previous 12 months. VA provided an examination for the Veteran's back again in May 2016. The Veteran complained of constant lower back pain aggravated by standing and walking for short periods of time, and denied flareups. A previous diagnosis of degenerative arthritis of the lumbar spine was continued, along with a new diagnosis of lumbar spondylosis that the examiner considered part of the rated lumbar back disability, and not a separate disease or pathology. Physical examination did not note any tenderness to palpation of the paraspinal muscles, guarding, or muscle spasm. Range of motion measurements were flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees each, and left and right lateral rotation to 30 degrees each. Pain was noted on movement. There was no evidence of localized tenderness or pain on palpation on the joints or associated soft tissue. Muscle strength was five on a scale of five. No ankylosis was noted, and no IVDS was noted. VA provided another examination for the Veteran's lumbar back in August 2019. The previous diagnosis of degenerative arthritis of the lumbar spine was continued, along with lumbar spondylosis confirmed by x-rays taken as part of this examination. The Veteran complained of worsening back pain since the last compensation and pension examination and that the level of pain limits his activities. The Veteran rated his pain as 8 on a scale of 10, and noted he takes both prescription and over the counter analgesics for his back pain. No flareups were noted, and the Veteran noted the pain level interferes with his sleep. Range of motion in flexion was to 65 degrees, in extension to 15 degrees each, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 15 degrees each. Pain was noted on examination and caused function loss. The Veteran reported pain on palpation with a severity of 5 on a scale of 10. Range of motion was measured after three repetitions and no change in measurements were found, and there was no change in estimated ranges of motion for any other form of measurement, including possible flareups. No guarding or muscle spasm was noted. Disturbance of locomotion was noted, along with interference with sitting and interference with standing. The Veteran reported pain with prolonged sitting, standing, or walking, and that it was relieved by him sitting in his recliner and elevating his legs. Muscle strength was 5 on a scale of 5. No ankylosis and no other neurological abnormalities were noted beyond the already service-connected right lower extremity radiculopathy. No IVDS was noted. The Veteran required regular use of a cane, and occasional use of a walker or braces to assist ambulation. 1. Entitlement to an increased rating in excess of 20 percent from October 15, 2007 for a lumbar back disability For the period from October 15, 2007, the Board finds the relevant rating criteria are met as to a rating of 20 percent for the Veteran's lumbar spine disability, but no higher. An evaluation of 20 percent is granted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. The Board notes an evaluation of 20 percent for this period, but no higher, is based upon the worst recorded range of motion of 45 degrees in forward flexion in this period. A higher evaluation of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ankylosis has never been diagnosed in this Veteran since service connection in 1991. While IVDS was noted during this period on one VA examination, there were no incapacitating episodes or periods of bed rest prescribed by a physician due to IVDS. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, the Board notes it has considered the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Each examiner noted above recorded the Veteran's statements of flare-ups and their impact on the Veteran's functional impact in their assessment of the lumbar back disability. The Board has also noted the possibility of additional diagnostic codes, to include Diagnostic Code 5242 for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, which now also includes a reference to Diagnostic Code 5003. However, the Board here refers to Note (1) under Diagnostic Code 5003, where potential 10 percent or 20 percent ratings will not be combined with ratings based on limitation of motion. Here, the Veteran's lumbar back disability is rated at 20 percent under Diagnostic Code 5237 based on limitation of motion, and an alternative diagnostic code based on degenerative arthritis does not benefit the Veteran. Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 20 percent from October 15, 2007 for the lumbar back degenerative joint disease disability. See 38 C.F.R. § 4.71(a), Diagnostic Code 5237; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's lumbar back disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart, 21 Vet. App. at 505. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.