Citation Nr: 21028888 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 03-15 273 DATE: May 12, 2021 ORDER On and after November 9, 2001, entitlement to a total disability rating due to individual unemployability (TDIU) is GRANTED. From October 21, 2001 to September 25, 2002, entitlement to a rating in excess of 20 percent for a service-connected lumbar spine disability is DENIED. On and after September 25, 2002, entitlement to a rating in excess of 40 percent for a service-connected lumbar spine disability is DENIED. FINDINGS OF FACT 1. On and after November 9, 2001, the Veteran's service-connected lumbar spine disability precluded him from securing or following a substantially gainful occupation. 2. From October 21, 2001 to September 25, 2002, the Veteran demonstrated more than 30 degrees of forward flexion of the thoracolumbar spine. The Veteran did not demonstrate spinal ankylosis. A physician did not prescribe bed rest for the Veteran's service-connected thoracolumbar spine disability. 3. On and after September 25, 2002, the Veteran demonstrated 30 degrees (or less) of thoracolumbar spine flexion. The Veteran did not demonstrate spinal ankylosis. The Veteran's intervertebral disc syndrome (IVDS) did not require doctor-prescribed bed rest during 6 weeks of any 12-month period. CONCLUSIONS OF LAW 1. On and after November 9, 2011, the schedular or extraschedular criteria are met for entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2020). 2. From October 21, 2001 to September 25, 2002, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability have not been substantiated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.27, 4.40, 4.49, 4.7.1a, Diagnostic Codes 5235 thru 5243. 3. On and after September 25, 2002, the criteria for a rating in excess of 40 percent for the service-connected lumbar spine disability have not been substantiated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.20, 4.27, 4.40, 4.49, 4.7.1a, Diagnostic Codes 5235 thru 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1983 to July 1986. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 1. On and after November 9, 2001, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. On November 9, 2001, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated a claim for an increased rating for a service-connected lumbar spine disability. On January 20, 2011, the Veteran submitted VA Form 21-8940. Thereby, the Veteran formalized a claim for TDIU. The Veteran relayed that the service-connected lumbar spine disability rendered him too disabled for full-time employment in 1996. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). 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 September 2002, the Veteran underwent a VA examination that addressed the severity of the service-connected lumbar spine disability. At that time, the Veteran reported that he had not worked regularly for the past couple years. The Veteran reported that he could only sit for 30 to 45 minutes. The Veteran reported that he could only walk for 10 to 15 minutes. In September 2002, correspondence from the Greater Los Angeles Healthcare System was associated with the claims file. Therein, the provider noted that the Veteran endured progressive back pain after separation from service. The provider opined that, "(p)atient with chronic debilitating back pain . . . which is affecting his lifestyle and capability to work." In September 2016, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted the Veteran's claim for TDIU, effective July 27, 2016. In February 2018, the Veteran's representative submitted a brief. Therein, the representative posited that the AOJ erred because it failed to consider an extraschedular TDIU. In April 2018, the Board considered the Veteran's claim for an earlier effective date for TDIU. The Board noted that the Veteran did not satisfy the schedular criteria for TDIU prior to April 20, 2015. At that time, the Board agreed with the representative's contention that extraschedular consideration was warranted. At that time, the Board deferred additional consideration of extraschedular TDIU, remanding the claim because it was inextricably intertwined with the claims for increased ratings for the service-connected lumbar spine disability. In September 2018, the AOJ issued a rating decision. Therein, the AOJ assigned an April 20, 2015 effective date for the Veteran's TDIU rating. In October 2020, an addendum opinion was associated with the claims file. Therein, the VA examiner opined that, "(t)his veteran had prominent disc herniation and degeneration observed on CT lumbar spine as far back as 9/30/04. He has elected not to seek surgical care for his condition. He has elected not to take daily inhibitory medications for pain control (such as opiates). His function in terms of work-related duties and tasks has been inhibited since at least 2004. Not only is he restricted when it comes to manual labor tasks (lifting, climbing, pulling, climbing) or prolonged standing or walking, but his pain affects his concentration, focus and efficiency in a sedentary-based job. He reports difficulty in interpersonal relationships and communication as a result of this. Therefore, it is more likely than not that he would not have been able to obtain and maintain steady employment during the time prior to 4/20/2015 as a result of his spinal condition." In January 2021, correspondence from the Director, Compensation Service was associated with the claims file. Therein, the Director noted that the October 2020 VA opinion revealed that the Veteran was unable to maintain steady employment prior to April 20, 2015 due to the service-connected lumbar spine disability. The Director noted that the examination report indicated that the Veteran's lumbar pain hindered concentration, focus and efficiency in sedentary-based positions. The Director decided that an extraschedular TDIU was warranted on and after January 20, 2011, which was the date the Veteran submitted the VA Form 21-8940. In January 2021, the AOJ issued a rating decision. Therein, the AOJ assigned a January 20, 2011 effective date for the award of the Veteran's extraschedular TDIU. Importantly, the Board notes that, when the issue of TDIU is raised by the record during the appeal of a claim for an increased rating, the issue of TDIU is considered part of the pending claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Board observes that the Veteran filed his claim for an increased rating for the service-connected lumbar spine disability on November 9, 2001. While the Veteran's increased rating claim was in appellate status, the Veteran filed VA Form 21-8940 AND his representative requested an extraschedular TDIU rating. In September 2002, a provider opined that, "(p)atient with chronic debilitating back pain . . . which is affecting his lifestyle and capability to work." In October 2020, a VA examiner opined that it was more likely than not that the Veteran would not have been able to obtain and maintain steady employment prior to April 2015, because of the service-connected lumbar spine disability. The VA examiner also opined that, in terms of work-related duties and tasks, the Veteran has been inhibited since at least 2004. Pursuant to Rice, the Board concludes that November 9, 2001, the date of receipt of the Veteran's claim for an increased rating for his back disability is the appropriate inception date for the Veteran's extraschedular TDIU rating. 22 Vet. App. at 454. Ultimately, the preponderance of the evidence favors the Veteran's claim for a TDIU rating on and after November 9, 2001. Accordingly, this claim must be granted. INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected lumbar spine disability. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran filed an increased rating claim for all of his service-connected disabilities on appeal on November 9, 2001. As noted above, the Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. Therefore, in the present case, the Board will place a specific focus on evidence of record back to November 9, 2000. 2. From October 21, 2001 to September 25, 2002, entitlement to a rating in excess of 20 percent for a service-connected lumbar spine disability is denied. On November 9, 2001, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated a claim for an increased rating for a service-connected lumbar spine disability. The criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. The Board further notes that a spine disability may be rated under multiple diagnostic codes. However, the Board finds the General Rating Formula for the spine provides the most potential for a favorable rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Under the alternative formula, DC 5243, there must be medical evidence demonstrating intervertebral disc syndrome and incapacitating episodes requiring physician prescribed bedrest. For purposes of evaluations under DC 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. See 38 C.F.R. § 4.71a, DC 5243, Note 1 During the claim period, the Board notes that the medical evidence does not reflect that the Veteran endured incapacitating episodes for his thoracolumbar spine the required physician-prescribed bedrest. As such, DC 5243 is not for application for this claim period, and the Board will proceed with analysis under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine is as follows: 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, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243 (in effect after September 26, 2003). On October 21, 2001, a record was generated at Kaiser Permanente. At that time, the Veteran reported "chronic low back pain for years." The provider noted bilateral Grade I spondylosis and gluteal strain, and the Veteran was referred to physical therapy. In January 2002, a treatment notation was generated at the Kaiser Los Angeles medical Center. Therein a provider reported that the Veterans lumbar spine pain was "longstanding, ever present, and limits his daily activities." In April 2002, the Veteran underwent a VA examination that addressed the current severity of the service-connected lumbar spine disability. At time, the examiner noted that, "some tenderness to palpation in the paralumbar areas. (The Veteran) describes some painful motion." The examiner noted the following range of motion (ROM) in degrees: 95 flexion, 20 extension, 25 left and right lateral flexion, and 30 left and right lateral rotation. The Veteran competently reported pain, weakness, fatigue, lack of endurance, and stiffness in the lumbar spine. The Veteran reported that he had difficulty when getting out of bed on some mornings. The examiner opined that, "(the Veteran) did have a slightly decreased range of motion of the lumbar spine. His reflexes were intact. I did not appreciate any foot drop. He was able to walk on his heels and toes." The examiner reported a normal gate and no limitation of function for standing and walking. In August 2002, a treatment notation was generated at the San Francisco VA Center. Therein, it was noted that the Veteran reported chronic lower back pain, which had progressed during the prior 2 years. The Veteran reported that it hurt to bend down for shoes and socks. In April 2015, the AOJ issued a rating decision. At that time, the AOJ assigned a 20 percent rating for the service-connected lumbar spine disability, effective October 21, 2001. In January 2018, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran was asked if he was ever prescribed bed rest. The Veteran supplied the following response: "(f)rom my private care physicians, yes. I was just told to get off my feet, elevate my feet, which was just imperative for me to get this proper circulation that I needed." For frequency and duration of bed rest, the Veteran responded that, "(b)asically anywhere from maybe seven days out of every two months, about a week out of every two months." In April 2018, the Board considered the Veteran's claim for an increased rating for the service-connected lumbar spine disability. At that time, the Board remanded the claim to determine whether the Veteran experienced intervertebral disc syndrome (IVDS) prior to July 29, 2015 and, if so, the frequency and duration of any incapacitating IVDS episodes. In September 2020, a disability benefits questionnaire (DBQ) was associated with the claims file. Therein, the VA examiner noted that, "(m)ultiple records demonstrate radiculopathy and abnormalities. No specific recommendations for bed rest, but overall medical management has been conservative." During the claim period, the Veteran's government and non-government treatment notations were associated with the claims file on multiple occasions. The Board finds that the notations do not indicate that the Veteran demonstrated 30 degrees (or less) of thoracolumbar spine flexion and/or spinal ankylosis during the claim period. The Board notes that the Veteran testified that a physician directed him to "get off my feet, elevate my feet . . .." However, after deliberate review, the Board finds that the Veteran's government and non-government treatment records do not indicate that a physician prescribed bed rest for the Veteran's service-connected lumbar spine disability at any point during the claim period. During the claim period, the Veteran did not demonstrate 30 degrees (or less) of forward flexion. The Veteran did not demonstrate spinal ankylosis. The Veteran's treatment notations do not indicate that a physician prescribed bed rest for the Veteran's service-connected thoracolumbar spine disability. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for a rating in excess of 20 percent between October 21, 2001 and September 24, 2002. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for a rating in excess of 20 percent between October 21, 2001 and September 24, 2002 must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). 3. On and after September 25, 2002, entitlement to a rating in excess of 40 percent for the service-connected lumbar spine disability is denied. On November 9, 2001, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated a claim for an increased rating for a service-connected lumbar spine disability. Again, the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. The Board further notes that a spine disability may be rated under multiple diagnostic codes. However, the Board finds the General Rating Formula for the spine provides the most potential for a favorable rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Under the alternative formula, DC 5243, there must be medical evidence demonstrating intervertebral disc syndrome and incapacitating episodes requiring physician-prescribed bedrest. For purposes of evaluations under DC 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. See 38 C.F.R. § 4.71a, DC 5243, Note 1. The General Rating Formula for Diseases and Injuries of the Spine is as follows: 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, a 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5235-5243. On September 25, 2002, the Veteran underwent a VA examination that addressed the severity of the service-connected lumbar spine disability. The examiner did not note guarding during the examination. The examiner noted that the Veteran walked slowly, but no gait abnormalities were observed. The examiner noted objective pain when the Veteran dressed and undressed. Importantly, the examiner reported that, "on range of motion testing, the Veteran only moved a few degrees in any direction, such as forward bending, right or left lateral bending, or extension, and he expressed pain. He stated that he cannot bend any further." The examiner reported that, "the patient brings an MRI of lumbar spine which does on axial imaging does appear to show a moderate disc bulge impinging mildly on the left L5-S1 foramen, however the sagittal views of the foramen do not reveal significant stenosis. In May 2006, the Veteran underwent a VA examination that addressed the current severity of the service-connected lumbar spine disability. The VA examiner reported that, "(t)he Veteran alleges excruciating pain all the time. He is physically not doing much at this time, according to him. He walks with the help of a cane. He only moved a few degrees on request to do range of motion of the lumbosacral spine." The examiner reported that, "(s)ince he is not doing much physical activity, he not able to describe additional flare-ups as his pain level is described as 10/10 all the time, it cannot go any further with any other activity. There are no other defined flare-ups." In April 2015, the Veteran underwent a VA examination that addressed the current severity of the service-connected lumbar spine disability. At that time, the Veteran reported that he would stop during a flare-up, because he could not do anything. The Veteran identified the following functional loss: he cannot lift / carry / stand / walk for extended periods of time or distance. The Veteran demonstrated the following initial ROM (in degrees): 90 forward flexion, 30 extension, 30 left and right lateral flexion, and 30 left and right lateral rotation. The examiner noted objective pain during forward flexion, extension, and left lateral flexion and rotation, but it did not result in / cause functional loss. The Veteran demonstrated pain with weight bearing. The examiner reported that the Veteran was unable to perform repetitive testing because, "unsteady on his feet and at great fall risk." The examiner reported that there was insufficient medical evidence to assess whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or during a flare-up. The Veteran demonstrated guarding and muscle spasm; however, they did not result in abnormal gait or spinal contour. The Veteran did not demonstrate spinal ankylosis. The examiner did not note a diagnosis for intervertebral disc syndrome (IVDS). The Veteran reported regular use of a brace, and constant use of a cane, for normal locomotion. In June 2016, the Board addressed the Veteran's claim for an increased rating for the service-connected thoracolumbar spine disability. At that time, the Board remanded the claim to the AOJ for additional development. The Board directed the VA examiner to address whether the Veteran endured IVDS at any time after November 2001, and to address whether physician-prescribed bed rest was prescribed. In July 2016, the Veteran underwent a VA examination that addressed the current severity of the service-connected lumbar spine disability. The examiner reported the following initial ROM (in degrees): 30 forward flexion, 5 extension, 10 left and right lateral flexion, and 0 left and right lateral rotation. After 3 repetitions, the Veteran demonstrated the following ROM (in degrees): 20 forward flexion, 0 extension, 5 left and right lateral flexion, and 0 left and right lateral rotation. The examiner reported that guarding resulted in abnormal gait or abnormal spinal contour. The Veteran did not demonstrate spinal ankylosis. The examiner noted the presence of IVDS, which resulted in 3 weeks of physician-prescribed bed rest during the prior 12-month period. The examiner noted that the Veteran supplied the medical history of physician-prescribed bed rest. The examiner reported constant use of cane for normal locomotion. Again, in January 2018, the Veteran supplied sworn testimony to the undersigned VLJ. At that time, the Veteran was asked if he was ever prescribed bed rest. The Veteran supplied the following response: "(f)rom my private care physicians, yes. I was just told to get off my feet, elevate my feet, which was just imperative for me to get this proper circulation that I needed." For frequency and duration of bed rest, the Veteran responded that, "(b)asically anywhere from maybe seven days out of every two months, about a week out of every two months." The Veteran testified that, "it was broken up. It was on a weekly thing. Now basically I see my doctor every month. But when I was seeing different physicians at that time, it was broken up into different weekly basis and stuff, like two days out of each week." In February 2018, the Veteran's representative submitted a brief. Therein, it was posited that, "(the Veteran) suffers from more incapacitating days where he cannot event get out of bed. When he experiences these incapacitating episodes, (the Veteran) testified that he stays in bed most of the day and uses heat and ice to alleviate the pain enough to try to get out of the house for pool therapy the next day." The representative posited that, "his treatment providers would prescribe him bed rest a few days every couple weeks and he estimated that he prescribed bedrest a week total out of every couple months increments of a few days at a time for an estimated total of 6 to 7 weeks out of a year." In April 2018, the Board considered the Veteran's claim for an increased rating for the service-connected lumbar spine disability. At that time, the Board remanded the claim to determine whether the Veteran experienced IVDS prior to July 29, 2015 and, if so, the frequency and duration of any incapacitating IVDS episodes. In September 2019, the Veteran underwent a VA examination that addressed the severity of the service-connected lumbar spine disability. The examiner noted a July 3, 2002 diagnosis for IVDS. The examiner noted that the Veteran was unable to stand during the examination, and it was noted that he could not sit for periods longer than 10 minutes. The Veteran reported that, during flare-ups, he is unable to stand up straight or move. The examiner reported the following initial range of motion (ROM) in degrees: 30 forward flexion, 20 extension, 15 right lateral flexion, 20 left lateral flexion, 15 right lateral rotation, and 20 left lateral rotation. The Veteran demonstrated pain in all ROM plains except left lateral rotation. The Veteran demonstrated pain with weight bearing. The examiner noted severe L4-S1 pain on palpation of the joint and surrounding soft tissue and buttocks. Due to severe pain, the Veteran was unable to undergo repetitive motion testing. The examination was not conducted after repeated use over time OR during a flare-up, and the examiner could not address functional ability for each without resorting to speculation. The examiner noted that muscle spasms resulted in abnormal gait or abnormal spinal contour. The examiner noted that the following factors contributed to the Veteran's disability: weakened movement, instability of station, disturbance of locomotion, and interference with sitting. The Veteran did not demonstrate ankylosis of the spine. The examiner reported that IVDS required at least 1 week, but less than 2 weeks, of bed rest during the prior 12-month period. The examiner noted that the Veteran reported physician-prescribed bed rest, and that supporting documentation was not available. The examiner noted constant use of a cane for mobilization. The examiner noted that arthritis was not revealed / documented in imaging studies of the Veteran's lumbar spine. The examiner noted that objective pain was demonstrated by the Veteran during passive ROM testing and non-weight bearing use. In September 2020, the Veteran underwent a VA examination that addressed the current severity of the service-connected lumbar spine disability. The VA examiner noted a 1984 diagnosis for IVDS. At that time, the Veteran reported "Ice pick stabbing" pain in the lower back and intermittent numbness. For flare-ups, the Veteran reported that pain will migrate to different areas of his back and body, there is some constant level of pain, and pain worsens if he tries any activity or immobility for too long. For functional loss, the Veteran reported that he can only tolerate low impact exercise, avoidance of stairs, and it takes hours to complete basic household chores and get ready in the morning. The examiner noted the following initial ROM (in degrees): 30 flexion and extension, 20 right lateral flexion, 15 left lateral flexion, and 10 right and left lateral rotation. The examiner reported objective pain in the ROM planes. The examiner noted moderate tenderness with palpation of the right lumbar area AND objective pain with weight bearing. The examiner did not identify a ROM loss with repetitive use. The examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time. The examiner supplied the following ROM values (in degrees): 20 flexion and extension, 10 right and left lateral flexion, and 10 left and right lateral extension. The examiner noted that the examination was conducted during a flare-up. The examiner reported that flare-up pain and lack of endurance resulted in the following ROM values (in degrees): 30 flexion and extension, 10 right lateral flexion, 15 left lateral flexion, and 10 right and left lateral rotation. The Veteran did not demonstrate guarding, muscle spasm(s), or ankylosis. The examiner noted an IVDS diagnosis, but it was reported that the Veteran did not have any episodes that required doctor-prescribed bed rest during the prior 12-month period. The examiner noted regular use of a cane, and constant use of orthotic shoe inserts, for normal locomotion. The examiner noted that imaging studies revealed arthritis of the thoracolumbar spine. The examiner noted objective pain in non-weight bearing. The examiner noted that passive ROM testing was not medically appropriate. In September 2020, a disability benefits questionnaire (DBQ) was associated with the claims file. Therein, the VA examiner noted that, "(m)ultiple records demonstrate radiculopathy and abnormalities. No specific recommendations for bed rest but overall medical management has been conservative. The veteran has declined opiate pain medications long-term and offered surgical interventions due to perceived risks of adverse outcomes." The Board notes that the July 2016 VA examiner reported that the Veteran identified physician-prescribed bed rest for the thoracolumbar spine disability. The Board also notes that, in January 2018, the Veteran testified that physicians had prescribed bed rest for the service-connected thoracolumbar spine disability. The Board observes that, in February 2018, the Veteran's representative reports episodes of physician-prescribed bed rest for the lower spine disability during the claim period. The Board finds observes, during the claim period, the Veteran's government and no-government treatment records have been included with the claims file on multiple occasions, to include notations generated at the Martinez CBOC, Palo Alto VAMC, West Los Angeles VAMC, San Francisco CBOC, New York HHS, and Northeast PCC. After deliberate review of the treatment notations, the Board finds that the Veteran did not demonstrate spinal ankylosis at any point during the claim period. The Board notes that, in July 2016, the Veteran reported that IVDS required 3 weeks of bed rest during the prior 12-month period. In September 2019, the Veteran reported that IVDS resulted in one week of bed rest each month. However, after deliberate review, the Board finds that the Veteran's medical treatment records do not include a notation that indicates physician-prescribed bed rest for the service-connected lumbar spine disability at any point during the claim period. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for a rating in excess 40 percent for the service-connected thoracolumbar spine disability on and after September 25, 2002. Since the preponderance of the evidence is against this increased rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for a rating in excess 40 percent for the service-connected thoracolumbar spine disability on and after September 25, 2002 must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.