Citation Nr: 21040170 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-26 919 DATE: July 2, 2021 ORDER Prior to November 4, 2019, entitlement to an initial rating of 20 percent, but no higher, for a lumbar spine disability is granted subject to the laws and regulations governing monetary benefits. From November 4, 2019, entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to service connection for spina bifida is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's lumbar spine disability was not manifested by forward flexion limited to 30 degrees or less, ankylosis, or by intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. 2. The Veteran's spina bifida is a congenital defect that pre-existed military service and was not subject to a superimposed disease or injury during service. CONCLUSIONS OF LAW 1. Prior to November 4, 2019, the criteria for a rating of 20 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237, 5242. 2. From November 4, 2019, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DC 5237, 5242. 3. The criteria for service connection for spina bifida have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to November 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, these matters were previously before the Board in October 2018, when they were remanded for further development. During the pendency of the appeal, an August 2020 rating decision granted an increased 20 percent rating for the Veteran's service-connected lumbar spine disability, effective November 4, 2019. See August 2020 Rating Decision Narrative. As this rating is not the maximum allowable, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In the October 2018 decision, the Board also remanded the issue of entitlement to service connection for a stomach disability. However, during the pendency of the appeal, an October 2020 rating decision granted service connection for adenomatous polyps. See October 2020 Rating Decision Narrative. Accordingly, as the Veteran's service connection claim has been granted, the issue is no longer in appellate status as there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In October 2020, the Veteran's attorney withdrew his representation. In an October 2020 rating decision, the RO determined that the Veteran's claim for a total rating based on individual unemployability (TDIU) was moot. This is because the Veteran has a 100 percent rating effective July 22, 2011, which is the same date of the grant of service connection for the lumbar spine. The Veteran's 100 percent rating is assigned for his service-connected depressive disorder, and he does not have separate service-connected disabilities rated at 60 percent. In his December 2019 VA Form 21-8940, the Veteran reported that all his service-connected disabilities prevented him from working. A claim for special monthly compensation has not been raised by the record. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); and Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the claim for TDIU is moot. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Prior to November 4, 2019, entitlement to an initial rating of 20 percent, but no higher, for a lumbar spine disability is granted subject to the laws and regulations governing monetary benefits. 2. From November 4, 2019, entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. As an initial matter, the Veteran filed his claim for entitlement to service connection for a broken bone in his lower back on July 22, 2011. See July 2011 VA Form 21-526 Veterans Application for Compensation or Pension. During the pendency of the appeal, an August 2020 rating decision granted an increased 20 percent rating for degenerative arthritis of the spine, effective November 4, 2019. See August 2020 Rating Decision Narrative. The Veteran contends that he should be entitled to a disability rating in excess of 10 percent for his service-connected lumbar spine disability, prior to November 4, 2019, and to a rating in excess of 20 percent thereafter. From July 22, 2011 to November 4, 2019, the Veteran's lumbar spine disability was assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, DC 5237. For the period on appeal from November 4, 2019, the Veteran's lumbar spine disability has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5242. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Board notes that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Prior to February 7, 2021, the General Rating Formula for Diseases or Injuries of the Spine pertained to diagnostic codes 5235 to 5243. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic criteria pertinent to thoracolumbar spine disabilities provides that 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 greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Under the General Rating Formula, a maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. See also Plate V; 38 C.F.R. § 4.71a. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as 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; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Effective February 7, 2021, DC 5242, applies to degenerative arthritis and degenerative disc disease other than IVDS. DC 5243 applies to IVDS and directs the rater to assign that diagnostic code only when there is disc herniation with compression of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. As discussed more fully below, throughout the period on appeal, the Veteran's lumbar spine disability has not been shown to be manifested by IVDS that satisfies the rating criteria for a 40 percent evaluation. Accordingly, the rating criteria pertaining to the Veteran's service-connected lumbar spine disability has not substantially changed as a result of the February 7, 2021 amendments. Turning to the evidence of record, the Veteran was afforded a VA examination for back conditions in January 2012. The examiner noted that the Veteran had been diagnosed with spina bifida occulta and chronic lumbosacral strain. During the examination, the Veteran reported that he had been experiencing constant back pain since service but denied flare-ups. Range of motion (ROM) testing revealed forward flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 30 degrees or greater, left lateral flexion to 15 degrees, and bilateral lateral rotation to 30 degrees or greater. No objective evidence of painful motion was noted on ROM testing and no additional loss of motion was found on repetitive use testing. However, the medical examiner did not indicate whether ROM testing was done on active or passive motion or with or without weightbearing. Additional contributing factors of disability included less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, instability of station, and interference with sitting, standing, and/or weight-bearing. Muscle strength, reflex, and sensory testing were normal, and the examiner found no evidence of guarding, muscle spasm, or localized tenderness. In addition, the Veteran's lumbar spine disability was not found to be manifested by ankylosis, IVDS, radiculopathy, or any other neurological abnormalities. Following the examination, the examiner found that the Veteran's service-connected lumbar spine disability did not impact his ability to work. See January 2011 VA examination. In February 2012, ROM testing revealed forward flexion to 70 degrees without radicular pain. A March 2012 physician outpatient contained an examination of the Veteran's back indicating a sprain at his lower left spine coccyx area and revealed forward flexion between 40 and 50 degrees. In this regard, the examiner reported that ROM testing had to be stopped due to pain. A March 2012 MRI of the Veteran's lumbar spine revealed mild degenerative changes. An April 2012 physician outpatient note shows that the Veteran stated that his lower back had been exacerbated and required emergency medical treatment. On examination, the Veteran was able to get to 90 degrees of forward flexion without radicular pain. However, the examiner also noted that the Veteran indicated pain at his lower back. During a May 2012 physical therapy consultation, the Veteran reported that his back pain had been fairly stable for 30 years but indicated that it became worse. The Veteran reported that his back was much better with standing, worse with sitting, and indicated that he had significant difficulty with sit to stand after prolonged sitting. On examination, the examiner noted slight loss of lordosis in the Veteran's lumbar spine and a slight skin fold on the right with decreased right paraspinal tone, which may have been due to a cyst removal when he was a child. ROM testing revealed flexion to 75 percent, extension to 10 percent with poor segmental movement, and bilateral side-bending with poor segmental movement to 50 percent. A June 2012 physical therapy note shows that the Veteran's flexion was limited to about 75 percent and that his extension was limited to about 25 percent. In addition, ROM testing conducted the following month revealed flexion reduced to 75 percent, extension to 10 percent, and bilateral side bending with poor segmental movement to 50 percent. The examiner continued to note evidence of slight loss of lordosis in the Veteran's lumbar spine and stated that he walked with a forward flexed gait. Identical ROM findings were noted in August 2012. See May 2013 CAPRI. A January 2014 lumbosacral MRI revealed degenerative disc disease at the level of L5-S1. However, the examiner found no evidence of acute fractures or subluxation of the visualized lumbosacral spine. An MRI obtained in December 2014 showed three millimeter central dorsal annular bulging at the L4-L5 disc and mild multilevel degenerative changes. A January 2015 primary care initial evaluation note shows that the Veteran had full range of motion. However, the examiner noted that the Veteran moved slowly and cautiously and reported discomfort to his lumbosacral area. In April 2015, the Veteran sought emergency medical care for back pain. At that time, he stated that he had been experiencing progressive lower back pain for the preceding three years. He described sharp pain in his bilateral lower back muscles. On examination, the examiner found full range of motion in the Veteran's spine without tenderness to palpation over the spinous processes. In addition, the Veteran's gait was noted to be normal though stooped over. The diagnosis was progressively worsening lower back pain. A May 2015 emergency department note shows that the Veteran endorsed soreness. On examination, the examiner noted tenderness to palpation at the mid-sacral level and that the Veteran walked a little slowly and slightly stooped forward. However, no step offs or swelling was found. See June 2015 CAPRI. The Veteran underwent another VA examination in February 2016. The examiner noted that the Veteran had been diagnosed with lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, lumbar strain, and degenerative disc disease and degenerative joint disease of the spine. During the examination, the Veteran denied flare-ups and did not report any functional loss or impairment. ROM testing revealed forward flexion to 100 degrees, extension to 20 degrees, and bilateral lateral flexion and rotation to 20 degrees. The examiner noted objective evidence of pain on extension but found that ROM did not contribute to functional loss and there was no evidence of pain with weightbearing. However, the medical examiner did not indicate whether ROM testing was done on active or passive motion. No objective evidence of painful motion was noted on ROM testing and no additional loss of motion was found on repetitive use testing. However, the examiner reported that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time. To this end, the examiner noted that the examination did not reveal that pain, weakness, fatigability, or incoordination limited the Veteran's functional ability during flare-ups or when he used his joint repeatedly beyond that which was described in the examination or additional ROM loss due to pain on use during flare-ups beyond that which was documented on examination. Additional contributing factors of disability included interference with sitting and lower back pain with lifting and bending forward. In addition, the examiner found evidence of muscle guarding but reported that it did not result in abnormal gait or abnormal spinal contour. Muscle strength and reflex testing were normal, and the Veteran's lumbar spine disability was not found to be manifested by ankylosis, radiculopathy, or by any other neurologic abnormalities. The examiner further noted that the Veteran had been diagnosed with IVDS but found that it was not manifested by any episodes or acute signs and symptoms that required bed rest prescribed by a physician or treatment by a physician in the preceding 12 months. Following the examination, the examiner found that the Veteran's service-connected lumbar spine disability impacted his ability to work by causing pain in his lower back with lifting, walking, using stairs, and sitting and walking for prolonged periods of time. See February 2016 C&P examination. A May 2016 addendum opinion shows that it was at least as likely as not that the Veteran's diagnosed degenerative disc disease was proximately due to or the result of his service-connected lumbosacral strain. In this regard, the examiner noted that the prognosis for lumbar strain was excellent for complete recovery and stated that more than 90 percent of patients completely recovered from an episode of lumbar muscle strain or sprain within one month. However, the examiner found that because the Veteran continued to experience back pain, it was likely that the initial strain was the source of the Veteran's degenerative disc disease with added wear and tear on his lumbar spine. See May 2016 C&P examination. In June 2016, the Veteran called VA to report that he was in intolerable pain and stated that he was hiding in the back room at work, crying, embarrassed because he was hurting so bad. The following day, an attending emergency department note shows that the Veteran reported that he had been experiencing chronic severe low back pain in his coccygeal region for years. He described the pain as midline, without radiation, and stated that it was located in his lower sacral/coccygeal area. However, he denied urinary symptoms. The assessment included chronic, unchanged low back/coccygeal pain. See February 2017 CAPRI. The Veteran underwent a pelvic x-ray for pain in September 2016, which revealed minimal degenerative changes of the lower lumbar spine. However, the examiner found no evidence of a fracture or dislocation. See October 2019 CAPRI. In November 2016, the Veteran reported that he severely hurt his back while picking up groceries a couple days before. Active ROM testing revealed flexion reduced by 25 percent, extension by 50 percent, left side bending by 25 percent, right side bending by 50 percent, left rotation by 25 percent, and right rotation by 50 percent. See October 2019 Medical Treatment Record Non-Government Facility. A disability determination and transmittal form, dated in January 2017, shows that the Social Security Administration (SSA) found the Veteran to be disabled from September 2016 and reported his primary diagnosis as discogenic and degenerative disorders of the back. Affective/mood disorders were noted as secondary diagnoses. A medical evaluation obtained in connection with the Veteran's claim for SSA disability benefits noted that the Veteran's symptoms included pain and weakness. He was also found to have postural limitations due to his degenerative disc disease of the cervical spine and chronic back pain. See August 2017 Medical Treatment Records Furnished by SSA. An April 2017 emergency department note shows that the Veteran endorsed chronic issues with pain and indicated that he felt that his "issues [were] not being addressed." In this regard, the Veteran reported that a physical therapist requested an x-ray to better look at his lower back as there was "a hole there." A physical examination of the Veteran's lumbar spine revealed no obvious step offs but showed tenderness to palpation at his L5 vertebrae. The assessment included lower back pain. During a June 2017 rheumatology consultation, the Veteran reported chronic lower back pain that prevented him from sleeping on his back, and the examiner noted that the Veteran had spina bifida at L5-S1, scoliosis centered about L3-L4, and L4-L5, and disk disease at L3-L4, L4-L5, and L5-S1. On examination, the examiner noted that the Veteran had limited ROM in his lumbar spine, but did not describe the loss of motion in terms of degrees. The assessment included osteoarthritis at multiple sites and multilevel degenerative disk disease associated with, but not necessarily secondary to, lumbosacral scoliosis. In November 2017, the Veteran reported lower back pain from a hole in his sacrum. Specifically, he stated that a broken bone rubbed against his nerves and caused increased pain. To this end, the Veteran stated that the pain was localized to the area around his coccyx and did not radiate. He further indicated that he had "taken everything out there" but reported that marijuana best relieved his pain. In addition, the Veteran reported that he could rock back and forth and, if he could get in the right spot, his lower back pain would subside. Notably, the Veteran also reported urinary urgency, which was found to be related to his blood pressure medications. On examination, gait and ROM were found to be normal, and his strength was grossly intact. Identical examination findings were noted in June 2018. See October 2019 CAPRI. A January 2019 private treatment record shows that the Veteran had moderate/severe lumbar spine pain. On examination, the private physician noted left paraspinal muscle hypertonicity/tenderness, restricted active range of motion, to include flexion reduced by 15 degrees and extension reduced by 10 degrees. Subsequent private treatment records dated from February to July 2019 show that the Veteran's flexion was reduced by, at worst, 20 degrees, however his extension and bilateral lateral flexion were found to be within normal limits despite the Veteran's reports of pain or tenderness. See October 2019 Medical Treatment Record Non-Government Facility. An April 2019 primary care note shows that the Veteran reported that he had been experiencing increased pain which made it difficult for him to complete activities of daily living. However, he continued to deny incontinence, urinary frequency, and urgency. On examination, the Veteran's gait was found to be normal, and his strength was grossly intact. See October 2019 CAPRI. The Veteran also underwent a VA examination in November 2019. The examiner noted that the Veteran had been diagnosed with degenerative arthritis of the spine, chronic lumbosacral strain, and L4-L5 disc dorsal annular bulging. During the examination, the Veteran reported low back pain. In addition, the Veteran reported flare-ups manifested by increased pain, stiffness, and soreness. He also endorsed functional loss with walking, standing, sitting, bending, and lifting but did not report any urinary or bowel impairment. ROM testing revealed forward flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees. The Veteran exhibited pain on rest/non-movement in all active ROM measurements and with weight bearing, and ROM was noted to result in functional loss with walking, standing, sitting, bending, and lifting. However, the examiner found no evidence of pain on non-weightbearing testing and stated that passive ROM testing could not be performed or was not medically appropriate. Repetitive use testing resulted in further loss of ROM or function, to include forward flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 20 degrees, due to pain. Pain was also noted to significantly limit the Veteran's functional ability with repeated use over a period of time. In addition, the examiner reported that the examination was not being conducted during a flare-up but found that pain would significantly limit the Veteran's functional ability with flare-ups, and would limit forward flexion to 45 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 15 degrees. In addition, the examiner found no evidence of guarding or muscle spasms, and the Veteran's lumbar spine disability was not found to be manifested by muscle atrophy, ankylosis, or IVDS. The examiner found no evidence of other neurologic abnormalities related to the Veteran's lumbar spine disability. Following the examination, the examiner reported that the Veteran's lumbar spine disability impacted his ability to work by causing functional loss with walking, standing, sitting, bending, and lifting. See November 2019 C&P examination. In January 2020, the Veteran stated that he had been experiencing increased pain, which made it difficult for him to complete activities of daily living. To this end, he stated that he fell a few weeks prior. See January 2020 CAPRI. After a review of the evidence of record, the Board finds that the Veteran is entitled to a rating of 20 percent, but no higher, for a lumbar spine disability under DC 5242 throughout the period on appeal. With regard to the initial period on appeal, the Board acknowledges that the January 2012 VA examiner found that the Veteran's forward flexion was limited to 65 degrees, while the February 2016 VA examiner reported that the Veteran could forward flex to 100 degrees. However, neither medical examiner indicated whether ROM testing was done on active or passive motion, and the January 2012 VA examiner did not state whether ROM testing was performed with or without weightbearing. In addition, the February 2016 VA examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time. See January 2011 VA examination; February 2016 C&P examination. The Board further notes that the Veteran sought emergency medical treatment for pain and other limitations associated with his lumbar spine disability multiple times during the period on appeal. In this regard, the Board notes that the Veteran's ROM was found to be limited to between 40 and 50 degrees in a March 2012 physician outpatient note, and although the Veteran's denied flare-ups during the January 2012 and February 2016 VA examinations, ROM findings recorded during the relevant period indicate that the Veteran's forward flexion ranged from 100 degrees to between 40 and 50 degrees. In addition, the Veteran's extension was found to be reduced to, at worst, 10 percent or 3 degrees during the period on appeal. See May 2013 CAPRI; February 2017 CAPRI; October 2019 CAPRI. Thus, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected lumbar spine disability more nearly approximated the 20 percent rating criteria during the initial period on appeal. The Board further notes that the Veteran has not argued, and the evidence does not reflect, that the November 2019 VA examination was inadequate. In this regard, the November 2019 examination report shows that the examiner performed a physical examination, to include ROM and repetitive use testing, discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. In this regard, the evidence of record shows that the Veteran's lumbar spine ROM was manifested by forward flexion to, at worst, 40 degrees, throughout the relevant period. See, e.g., November 2019 C&P examination. The Board acknowledges that the Veteran was diagnosed with IVDS during the February 2016 VA examination. However, the Board notes that the examiner found that the Veteran's IVDS was not manifested by any episodes or acute signs and symptoms that required bed rest prescribed by a physician or treatment by a physician in the preceding 12 months. See March 2016 C&P examination. To this end, the evidence of record does not show, and the Veteran has not reported, that his lumbar spine disability has been manifested by IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Thus, even if the Board were to consider rating the Veteran's lumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome, the criteria for a 40 percent rating have not been met. The Board has also considered assigning higher disability ratings pursuant to 38 C.F.R. §§ 4.40 and 4.45. In this regard, the Board acknowledges the Veteran's reported complaints of pain and painful motion. However, the Veteran's lumbar spine disability has been rated based on limitation of motion (i.e. functional loss) caused by pain. As such, the Board finds that the currently assigned disability rating takes into account functional limitations based on painful motion and there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. As such, a higher rating based on pain and functional loss is not warranted in this case. See DeLuca v. Brown, 8 Vet. App. at 207; see also Mitchell v. Shinseki, 25 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. at 26. Accordingly, throughout the period on appeal, the highest rating available is 20 percent. A higher 40 percent evaluation is not warranted as the Veteran's spine disability has not been manifested by forward flexion limited to 30 degrees or less or by ankylosis. Moreover, IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months has not been shown. Thus, the Board finds that a 20 percent evaluation is warranted throughout the appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for spina bifida is denied. The Veteran states that his diagnosed spina bifida occulta manifested or was superimposed disease or injury while he was serving on active duty. In August 2011, the Veteran reported that he broke a bone in his lower back after he fell while pulling tires off a five-ton truck during service. To this end, he stated that he was sent to the hospital after he returned to base. The Veteran further reported that he has continued to experience back pain and noted had not been to find a comfortable sleeping position since the in-service incident. See July 2011 VA Form 21-526 Veterans Application for Compensation or Pension; August 2011 VA Form 21-4142 Authorization for Release of Information. A review of the Veteran's service treatment records (STRs) shows a March 1975 enlistment report of medical examination that notes the Veteran's spine and other musculoskeletal system to be normal. However, the examiner also noted that the Veteran had a back noncommunicable disease and a scar on his back. In August 1979, the Veteran reported that he began experiencing back pain while pulling wheels approximately one year prior and stated that he had been experiencing intermittent lower back pain since then. In this regard, the Veteran endorsed worsening pain mostly on his right and left L5 area. However, he also reported that he had surgery on his back when he was 13 years old for a "cyst" pushing his spine out, and the examiner noted that x-rays showed spina bifida at the Veteran's L5 vertebrae. The impression was lower back pain probably secondary to residual changes from what sounded like possible meningocele caused by his spina bifida occulta. However, the Veteran's spine and other musculoskeletal system were noted to be normal on the October 1979 release from active duty report of medical examination. See March 2014 STR Medical. The Veteran underwent a VA examination for back conditions in January 2012. The examiner noted that the Veteran had been diagnosed with spina bifida occulta and chronic lumbosacral strain. Specifically, the examiner noted that the Veteran had a bony defect at L5 consistent with spina bifida occulta, which was wholly consistent with an August 1979 evaluation documented in the Veteran's STRs. To this end, the examiner reported that spina bifida occulta was a benign condition that did not cause pain. After performing an examination and reviewing the evidence of record, the examiner opined that the Veteran's diagnosed spina bifida occulta, which clearly and unmistakably existed prior to service, was clearly and unmistakable not aggravated beyond it natural progression by an in-service event, injury, or illness. In support of their opinion, the examiner noted that the Veteran's back pain was not secondary to his diagnosed spina bifida occulta, which was present since birth. The examiner further noted that there was no apparent fracture in the Veteran's back. See January 2012 VA examination. The Veteran underwent a VA examination February 2016. The examiner noted that the Veteran had been diagnosed with lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, lumbar strain, and degenerative disc disease and joint disease of the spine. However, rather than noting the Veteran's medical history, the examiner stated that the Veteran was service connected for lumbar strain and that the purpose of the examination was to determine the current severity of that disability. See February 2016 C&P examination. During a June 2017 rheumatology consultation, the Veteran reported chronic lower back pain, and the examiner noted that the Veteran had spina bifida at L5-S1, scoliosis centered about L3-L4 and L4-L5, and disk disease at L3-L4, L4-L5, and L5-S1. The assessment included osteoarthritis at multiple sites and multilevel degenerative disk disease associated with, but not necessarily secondary to, lumbosacral scoliosis. See October 2019 CAPRI. VA obtained an independent medical opinion in July 2020. Following a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran's diagnosed spina bifida occulta was incurred in or caused by the claimed in-service injury, event, or illness. In support of her opinion, the examiner noted that the Veteran's STRs showed that he was diagnosed with spina bifida occulta in August 1979. However, the examiner noted that spina bifida occulta was a condition that occurred when a baby's backbone (spine) does not fully form during pregnancy and is born with a small gap in the bones of the spine. In this regard, the examiner noted that the Veteran's diagnosed spina bifida occulta was a congenital condition. Thus, although the Veteran was diagnosed with spina bifida occulta during service, the examiner opined it was less likely than not that it was incurred in or caused by the Veteran's service. The examiner further opined that it was less likely than not that the Veteran's spina bifida occulta was subject to a superimposed injury during his period of service. To this end, the examiner noted that symptoms of spina bifida occulta were usually mild, as the gaps in the vertebrae were minimal, and that the spinal cord was well protected. The examiner further reported that spina bifida usually did not cause any disabilities and noted that, in many cases, it was not discovered until late childhood or adulthood which was not related to his other diagnosed disabilities. As such, the examiner opined that it was less likely than not that the Veteran's spina bifida occulta was subject to a superimposed injury during his period of service. See August 2020 C&P examination. After a review of the evidence of record, the Board finds that entitlement to service connection for spina bifida is not warranted. As an initial matter, the Board notes that the April 2013 rating decision granted entitlement to service connection for chronic lumbosacral strain. As such, the issue before the Board is limited to entitlement to service connection for spina bifida, a congenital defect. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. See 38 C.F.R. § 4.9. When there is a congenital defect, the presumption of soundness is rebutted, and the congenital defect is considered to have existed prior to active service. Id. Congenital defects can be subject to superimposed disease or injury, and if, during an individual's military service, a superimposed disease or injury occurs, service connection may be warranted for the resulting disability. See also VAOPGCPREC 82-90 (July 18, 1990). Here, there is no evidence that the Veteran's spina bifida occulta was subject to a superimposed disease or injury during his military service. In this regard, the Board recognizes the Veteran's lay statements that he developed spina bifida occulta during service, or in the alternative, that it was subject to a superimposed injury when he broke a bone in his lower back after he fell while pulling tires off a five-ton truck during service. The Veteran is competent to report purported symptoms such as lower back pain or whether he has received a diagnosis from a medical professional. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, without evidence showing that he has medical training or expertise, he cannot competently provide a medical nexus opinion between a current diagnosis and his in-service spina bifida occulta diagnosis or to state whether his current symptoms are attributable to his service-connected lumbar spine disability or to his diagnosed spina bifida occulta. In other words, he is not competent to assert that his spina bifida occulta began during service or was caused by events during service. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In this regard, the Board finds the July 2020 addendum opinion to be the most probative evidence of record. To this end, following a review of the evidence of record, the July 2020 VA examiner opined that it was less likely than not that the Veteran's diagnosed spina bifida occulta was incurred in or caused by the claimed in-service injury, event, or illness. The examiner further opined that it was less likely than not that the Veteran's spina bifida occulta was subject to a superimposed during his period of service. In support of her opinion, the examiner noted that the Veteran's STRs showed that he was diagnosed with spina bifida occulta in August 1979 but explained that spina bifida occulta was a congenital condition that usually did not cause any disabilities and, in many cases, was not discovered until late childhood or adulthood. See August 2020 C&P examination. The examiner's rationale is supported by the medical evidence of record, to include the Veteran's STRs and the June 2017 rheumatology consultation. In this regard, the examiner has training, knowledge, and expertise on which she relied to form her opinion, and she provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's spina bifida is a congenital defect that pre-existed military service and is therefore excluded from the definition of a disease for which service connection may be granted. Moreover, the Board finds that the congenital defect was not subject to a superimposed disability by military service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim or service connection for spina bifida. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.