Citation Nr: 21031051 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-61 355 DATE: May 20, 2021 ORDER As new and material evidence has not been received, the request to reopen the claim for entitlement to service connection for hypertension with residuals of hydronephrosis of the right kidney with status pyeloplasty of the right urethral junction (hereinafter "hypertension") is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. A 20 percent rating, but no higher, for degenerative changes of the lumbar spine with spondylolisthesis (hereinafter "lumbar spine disability") is granted. FINDINGS OF FACT 1. The May 1975 rating decision that denied entitlement to service connection for hypertension was not timely appealed and became final. 2. Evidence received since the May 1975 rating decision does not raise a reasonable possibility of substantiating the underlying claim for service connection for hypertension. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that his tinnitus is etiologically related to military noise exposure. 4. A preponderance of the evidence does not demonstrate that the Veteran's bilateral hearing loss had its onset during active duty service, manifested within one year of separation, or is otherwise etiologically related to military noise exposure. 5. The Veteran's lumbar spine disability manifests by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; however, forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine are not shown. CONCLUSIONS OF LAW 1. The May 1975 rating decision that denied entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. 2. The criteria for reopening the previously-denied claim for service connection for hypertension have not been met. 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for a 20 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1966 to October 1974. These matters are before the Board of Veterans' Appeal (Board) on appeal from October 2015 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). A May 2021 virtual tele-hearing before the undersigned Veterans Law Judge was cancelled and the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 19.52, 20.201, 20.202, 20.203. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension The last prior final denial for the claim for service connection for hypertension was a May 1975 rating decision. The rating decision is final because the Veteran did not submit a notice of disagreement with the rating decision within one year of notification of the determination. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. Therefore, the Board must look to the evidence submitted since May 1975 for new and material evidence. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge, 155 F.3d at 1356. In the May 1975 rating decision, the RO denied the Veteran's claim for service connection for hypertension because the evidence did not show that the disability, which preexisted service, was aggravated by service. Evidence received since May 1975 includes private and VA treatment records, a December 2016 letter from the Veteran's private physician, and lay statements submitted by the Veteran. The new medical records and the letter from the Veteran's physician demonstrate that the Veteran is currently treated for hypertension. The Veteran's lay statements reaffirm evidence that was already of record contained in his service treatment records: that he was noted to have high blood pressure upon his induction into service and that he was diagnosed with hypertension and hydronephrosis, resulting in him undergoing pyeloplasty, during service. His statements also discuss his current treatment for hypertension. In summary, the new evidence received since May 1975 does not suggest that the Veteran's preexisting hypertension was aggravated beyond its natural progression during military service. As such, the Board finds that the new evidence is not material because it does not relate to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for entitlement to service connection for hypertension is not reopened. See Annoni v. Brown, 5 Vet. App. 463 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include tinnitus and sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. 2. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus, which he contends was incurred in service due to his military occupational specialty (MOS) duties as a laboratory animal technician. The Veteran maintains that he worked every day for eight years in a laboratory with approximately 200 screeching monkeys without hearing protection. He has stated that his tinnitus began during service and has continued ever since, and that he had no other post-service occupational or environmental noise exposure to explain his symptoms of tinnitus. See March 2017 Correspondence. As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, based on his lay testimony, the Veteran's exposure to excessive military noise during service is conceded by the Board. Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As such, there is no dispute that the Veteran has a current diagnosis of tinnitus. The question remaining before the Board is whether the Veteran's tinnitus is etiologically related to his in-service noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in the Veteran's favor and finds that service connection for tinnitus is warranted. The Veteran underwent a VA audiology examination in October 2015. On examination, the VA examiner opined that the Veteran's tinnitus is less likely than not related to military noise exposure because there is no evidence of hazardous noise exposure or threshold shift in hearing acuity during service. The Board finds this medical opinion to be inadequate because the examiner did not take into consideration the Veteran's lay statements regarding the in-service onset and continuity of his tinnitus. Therefore, the opinion cannot serve as a basis to deny the Veteran's claim for service connection. The Board acknowledges that the record does not contain an adequate medical opinion with regard to the etiology of the Veteran's tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran's lay statement that his tinnitus had its onset during service and that it has continued ever since. See Layno, 6 Vet. App. at 469-70. Based on the Veteran's competent and credible statement regarding the onset and continuity of his tinnitus symptoms, the Board finds that the evidence is at least in equipoise that the Veteran's tinnitus was incurred during service and caused by his in-service noise exposure. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 3. Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss, which he contends is related to military noise exposure. As previously noted, the Veteran's exposure to acoustic trauma during service has been conceded. However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must have resulted in a hearing loss disability. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). In Hensley, the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. The Veteran's service treatment records have been associated with the claims file, including his April 1966 entrance examination and October 1974 separation examination. On both examinations, the Veteran denied any subjective hearing loss or ear problems and audiometric testing revealed normal hearing acuity in both ears. The service treatment records do not document any findings related to complaints, treatment, or diagnosis for hearing loss or ear problems during service. The Veteran underwent a VA audiological examination in October 2015. Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 68 percent in the right ear and 64 percent in the left ear. Moreover, an audiogram showed auditory thresholds of 40 decibels or greater from 2000 hertz to 4000 hertz in both ears. As such, the VA examination established that the Veteran has a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. Upon examination, the October 2015 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of military noise exposure. The examiner based this conclusion on the lack of documented hearing loss in the Veteran's service treatment records, with no significant threshold shifts noted on the audiometric testing conducted between 1966 and 1974. Thereafter, VA treatment records show that the Veteran sought treatment at the audiology clinic for hearing loss in March 2016 at which time he was noted to have a high-frequency hearing loss in both ears. He was fit with hearing aids in June 2016. After careful review of the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's bilateral hearing loss had its onset in service, within one year of separation, or is otherwise etiologically related to any disease, injury, or event that occurred during service, to include excessive military noise. In making this determination, the Board finds the October 2015 VA medical opinion, which is the only medical opinion of record, to be adequate for deciding the Veteran's claim. In this regard, the October 2015 VA opinion provided a fully articulated conclusion based on the examiner's expertise as an audiologist and with citation to the Veteran's claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (holding that conclusions that are factually accurate, fully articulated, and contain sound reasoning contribute to the probative value of a medical opinion). Significantly, neither the Veteran nor his representative have presented or identified any contrary medical opinion that supports the claim for service connection or refutes the conclusion of the VA examiner. As such, the VA opinion is the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran's bilateral hearing loss was incurred in service or caused by military noise exposure. The Board has also considered whether service connection for bilateral hearing loss is warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Board finds that the evidence of record fails to show that the Veteran's hearing loss disability manifested to a compensable degree within one year of separation from service. The Veteran has not provided any medical or lay evidence documenting hearing loss within one year of separation or continuous symptoms of hearing loss since service. The Veteran filed a claim for hearing loss in April 2015. There is no evidence that he ever reported or sought medical treatment for hearing loss until March 2016, which is approximately 42 years after separation from service. This lengthy period of time without diagnosis or treatment weighs against the finding that hearing loss has existed ever since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such, the Board does not find evidence of continuity of symptoms in the years following service; therefore, service connection is not warranted on a presumptive basis or on the basis of continuity of symptomatology. The Board acknowledges the Veteran's sincere belief that his bilateral hearing loss disability is related to military noise exposure and should be service-connected. The Veteran is competent to report on matters observed or within his personal knowledge and is therefore competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a complex disease such as sensorineural hearing loss requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether his bilateral hearing loss was incurred in or caused by his military service, including exposure to acoustic trauma. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any assertion by the Veteran regarding the etiology of his hearing loss is not competent evidence. The Board finds the competent medical opinion of record, provided by a qualified medical professional, to be more probative as to etiology. Accordingly, the Board finds that the preponderance of the evidence is against a finding that service connection for bilateral hearing loss is warranted. In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons and bases supporting its decision. See 38 U.S.C. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence, and it should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Id.; see also Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake, 14 Vet. App at 122. Hence, the Board will summarize the relevant evidence as appropriate, with the below analysis focusing on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran's claim. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 4. Entitlement to a rating in excess of 10 percent for a lumbar spine disability The Veteran's service-connected lumbar spine disability is currently rated under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a. The Veteran contends that he is entitled to an increased rating because his lumbar spine disability and its associated symptoms are more severe than contemplated by his currently-assigned disability rating. Diagnostic Code 5242 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which stipulates, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, that the following ratings will apply: A 10 percent rating is assigned where there is 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 contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned where there is 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. After a thorough review of the medical and lay evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating, but no higher, for his lumbar spine disability is warranted throughout the entire appellate period. The Veteran filed his clam for an increased rating in April 2015. He underwent a VA thoracolumbar spine conditions examination in September 2015. Upon examination, he was confirmed by x-ray to have diagnoses of degenerative arthritis of the spine, spondylolisthesis, and scoliosis. The Veteran reported experiencing flare-ups of low back pain that come without warning or a precipitating event. He treats his flare-ups with prescription steroids and two to three days of rest. Range of motion testing revealed the Veteran to have forward flexion to 90 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 20 degrees. Range of motion itself did not contribute to functional loss and no pain was noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. After repeated use over time, the examiner determined that the Veteran would not have additional limitation of range of motion, noting that the Veteran does not have pain with range of motion and would therefore be able to maintain his range of motion. On periods of flare-up, the examiner found that pain and lack of endurance would significantly limit functional ability. During flare-ups, the Veteran's back is in spasm and he is unable to move; he has to lie down for two to three days. The Veteran was not noted to have muscle spasm or guarding; however, he was noted to have a deformity (right convexity scoliosis) that contributes to his disability by causing less movement than normal. No radiculopathy or other neurological abnormalities were reported. The Veteran did not have intervertebral disc syndrome (IVDS) or incapacitating episodes. Muscle strength was normal and there was no ankylosis. In an October 2015 statement, the Veteran reported that he experiences flare-up of low back pain two to four times per year during which he must rest up to three to four days at a time. His private physician prescribes him prednisone for these occasions so that he can begin treatment at soon as his symptoms begin. He also reported that he has begun to use a cane with much more frequency due to back pain. The Veteran underwent another VA thoracolumbar spine conditions examination in January 2017. The VA examiner noted that the Veteran's low back disability has progressed over the years with increasing stiffness and sometimes pain in mid to low back and left lower back area. The pain in aggravated a few times per year and worsened by prolonged bending or postures. He treats these flare-ups with over-the-counter analgesics and prednisone packs. During these flare-ups, the Veteran has reduced mobility in the thoracolumbar spine which leads to an inability to reach forward while bending or pick up or lift objects. Also, he has a limited ability to sit or stand for long periods of time. Range of motion testing revealed forward flexion to 70 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 15 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. Pain was noted on examination that causes functional loss. There was objective evidence of localized tenderness and pain on palpation of the spinous processes of the lower thoracic and upper lumbar spine. The Veteran performed repetitive-use testing with no additional loss of function or range of motion. On repeated use over time, the VA examiner opined that the Veteran would only experience a 5 degree loss of motion on left lateral rotation; all other ranges of motion would remain the same. The examiner opined that pain would significantly limit functional ability during flare-ups, but did not describe this functional loss in terms of range of motion because the Veteran was not examined during a period of flare-up. Muscle spasm or guarding were not observed, and localized tenderness did not result in abnormal gait or abnormal spinal contour. Muscle strength and sensory examinations were normal. Muscle atrophy or ankylosis were not found. No radiculopathy or other neurological abnormalities were reported. The Veteran did not have IVDS or incapacitating episodes. In a March 2017 statement, the Veteran disputed the findings of the September 2015 and January 2017 VA examiners. He stated that the examiners did not observe him walking because if they had, they would have noticed his abnormal gait. Due to his curved spine and low back pain, the Veteran asserts that he is unable to walk prolonged periods without stopping and using an object, such as a parking meter, stop sign, or a shopping cart, to straighten out his spine. He stated that he cannot walk with his spine straight for more than three minutes before the pain and discomfort makes him either stop walking or walk partially bent over. Due to this, he frequently uses a cane to help straighten his back while walking. It is acknowledged that some of examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also 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). As noted above, the examination report contains evidence regarding the frequency, severity, and duration of the Veteran's pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran's service-connected disabilities. In fact, after careful review of the above medical and lay evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spine disability more nearly approximates the criteria for a 20 percent rating, but no higher, for the entire period on appeal. As noted above, to qualify for a higher rating of 20 percent, the Veteran must have 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. Review of the objective medical evidence does not show the Veteran to have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. However, the Board finds that it is at least as likely as not that the Veteran's lumbar spine disability results in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis. In making this finding, the Board notes that the Veteran has been shown on x-ray to have scoliosis. Moreover, although not noted on the two VA examinations of record, the Veteran has described in detail that he experiences stiffness and pain in his low back that results in guarding severe enough to result in an abnormal gait, particularly on flare-ups. In this regard, the Veteran has described that it becomes so difficult for him to walk upright due to pain and stiffness in his low back, as well as his scoliosis, that he must walk with the assistance of a cane or use some other object, like a shopping cart, while walking to straighten out his back and prevent himself from walking partially bent over. The Board finds the Veteran's statements to be competent, credible, and consistent with the objective evidence of record. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, a 20 percent rating is warranted, when considering the Veteran's reports of flare-ups. The Board has considered the next higher disability rating of 40 percent. However, the evidence of record does not show forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, at any time during the appellate period. Furthermore, although the Veteran has reported experiencing functional loss during periods of flare-up pain, which requires him to rest for a few days, there is nothing in the record that suggests this increased pain, which occurs three to four times per year, results in a disability picture that more nearly approximates the criteria for a 40 percent, or higher, rating. In this regard, functional loss is not shown beyond what is already contemplated by the currently-assigned 20 percent rating. As such, the Board finds that the Veteran's low back symptomatology, including during the reported flare-ups, is fully contemplated by a 20 percent rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. All other potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, the Board finds that no additional higher or separate ratings under a different diagnostic code can be applied. In this regard, Diagnostic Code 5003 for degenerative arthritis is not for application here because the maximum schedular rating is 20 percent, which would not result in an increased rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Moreover, there is no medical evidence that the Veteran has been diagnosed with IVDS, nor is there evidence that the Veteran has at any point been prescribed bed rest by a physician for his back disability. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. As such, an increased rating based on incapacitating episodes is not warranted. Finally, there is no medical evidence of radiculopathy or other neurologic abnormalities associated with the Veteran's low back disability. 38 C.F.R. § 4.71a, General Formula, Note 1. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating, but no higher, for the Veteran's lumbar spine disability is warranted. To this extent, the Veteran's claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.