Citation Nr: 21040390 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 12-35 218 DATE: July 3, 2021 ORDER Entitlement to a disability rating of 30 percent, but not higher, prior to March 13, 2015, for service-connected right shoulder degenerative arthritis and impingement syndrome is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent from March 13, 2015, to September 22, 2016, for right shoulder degenerative arthritis and impingement syndrome is denied. Entitlement to a disability rating of 30 percent, but not higher, from November 1, 2016, to July 30, 2017, for right shoulder degenerative arthritis and impingement syndrome is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent from July 31, 2017, for right shoulder degenerative arthritis and impingement syndrome is denied. Entitlement to a disability rating of 20 percent, but not higher, prior to July 31, 2017, for spondylosis of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for spondylosis of the lumbar spine from July 31, 2017, is denied. The reduction in disability rating from 40 percent to 20 percent from September 10, 2020 for a lumbar spine disability was improper and restoration is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's right shoulder does not exhibit a scapulohumeral disorder, flail shoulder, or impairment of the clavicle or scapula. 2. Throughout the course of the appeal, the Veteran's right shoulder does not exhibit ankylosis. 3. Throughout the course of the appeal, the Veteran did not exhibit lost range of motion of the arm of 25 degrees from side. 4. Prior to July 31, 2017, the Veteran's lumbar spine disability flareups resulted in forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees. 5. Throughout the course of the appeal, the Veteran's spine did not exhibit ankylosis, IVDS, guarding, or muscle spasm. 6. The reduction of the disability rating for the Veteran's lumbar spine disability from 40 percent to 20 percent effective from September 2020, was improper. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 30 percent, but not higher, prior to March 13, 2015, for service-connected right shoulder degenerative arthritis and impingement syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201, 5203. 2. The criteria for entitlement to a disability rating in excess of 30 percent from March 13, 2015, to September 22, 2016, for service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201, 5203. 3. The criteria for entitlement to a disability rating of 30 percent, but not higher, from November 1, 2016, to July 30, 2017, for service-connected right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201, 5203. 4. The criteria for entitlement to a disability rating in excess of 30 percent from July 31, 2017, for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201, 5203. 5. The criteria for entitlement to a disability rating of 20 percent, but not higher, prior to July 31, 2017, for spondylosis of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. 6. The criteria for entitlement to a disability rating in excess of 40 percent from July 31, 2017, for spondylosis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. 7. Restoration of the 40 percent disability rating for the Veteran's lumbar spine disability for the period from September 10, 2020, is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.14.14, 4.71a Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to June 1994 and August 1997 to September 2010. These matters come before the Board of Veterans' Appeals (Board) from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2016, the case came before the Board. The Board remanded the Veteran's claims for increased ratings for a right shoulder disability, lumbar spine disability, and left heel disability. In an August 2016 rating decision, the RO increased the disability evaluation for a right shoulder disability to 20 percent effective June 24, 2015, left heel disability to 10 percent effective June 27, 2016, and lumbar spine disability effective September16, 2014. In December 2016, the Veteran was awarded a 100 percent rating for post-surgical convalescence. The 100 percent rating was in effect from September 23, 2016, until October 31, 2016. As the Veteran was in receipt of the maximum schedular rating this period of the appeal is not currently before the Board. In July 2017, the case returned to the Board. The Board denied entitlement to an increased rating for a left heel disability. The Board also remanded the Veteran's right shoulder and lumbar spine claims for additional VA examinations. In August 2018, the case returned to the Board. The Board remanded the Veteran's right shoulder and lumbar spine claims in order for the Veteran's private treatment records to be associated with the Veteran's claims file. The Board also ordered additional VA examinations. In June 2020, the RO issued a rating decision that reduced the Veteran's lumbar spine disability to 20 percent disabling. In October 2020, the case returned to the Board. The Board found that the Veteran's previous lumbar spine and right shoulder examinations were inadequate and ordered additional VA examinations. As an initial matter, the Board acknowledges that the previous Board decisions found the VA examination reports pertaining to the Veteran's reports of flareups and functional loss to be inadequate. Therefore, the Board will use the range of motion estimates pertaining to flareups and repetitive use provided by the February 2021 VA examiner to evaluate the Veteran's right shoulder and lumbar spine disability throughout the course of the appeal. Increased Rating The Veteran contends that his disabilities warrant increased ratings. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability rating in excess of 20 percent prior to March 13, 2015 for service-connected right shoulder degenerative arthritis and impingement syndrome 2. Entitlement to a disability rating in excess of 30 percent from March 13, 2015, to September 22, 2016, for service-connected right shoulder disability 3. Entitlement to a disability rating in excess of 20 percent from November 1, 2016, to July 30, 2017, for service-connected right shoulder disability 4. Entitlement to a disability rating in excess of 30 percent from July 31, 2017, for a right shoulder disability The Board notes that the Veteran is challenging his initial rating. The Board notes that the Veteran was granted service connection for this disability on October 1, 2010, which was the date that he separated from the service. The Veteran's right shoulder disability was rated according to Diagnostic Code 5201. The Board notes that the Veteran is right hand dominant. Normal range of motion in the shoulder is from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71a, Plate I Diagnostic Code 5200 provides evaluations for ankylosis of the scapulohumeral articulation and Diagnostic Code 5202 provides evaluations for impairment of the humerus. As there is no evidence of record supporting ankylosis or impairment of the humerus, the Veteran is not entitled to a rating under either diagnostic code. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). During the course of the appeal, VA revised the portion of the rating schedule that addresses the musculoskeletal system. Diagnostic Code 5201, which is pertinent to the Veteran's appeal, was revised effective from February 7, 2021. Diagnostic Code 5201 now reads as follows: flexion and/or abduction limited to 25 degrees from side warrants a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity. Limitation of motion of midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating for the major extremity and 20 percent for the minor extremity. Limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for the major and minor extremity. Under Diagnostic Code 5203, malunion of the clavicle or scapula warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent rating in both the major and minor extremity. Dislocation of the clavicle or scapula warrants a maximum 20 percent rating in both the major and minor extremity. Or rate on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as shoulder impingement and acromioclavicular joint osteoarthritis. As to the Veteran's lay statements, the Board notes that the Veteran submitted correspondence to VA in April 2021. The Veteran reported that he experiences pain in his shoulder and that he is unable to lift his arm above shoulder level. The Veteran also stated that he has difficulty reaching for objects are above shoulder level. The Board also notes that the Veteran's wife submitted correspondence to VA in April 2021. The Veteran's wife stated that her husband is in constant pain and he is unable to lift his arm above shoulder level. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in June 2010. The examiner indicated that the Veteran's right shoulder exhibited flexion to 170 degrees, abduction to 170 degrees, internal rotation to 80 degrees, and external rotation to 85 degrees. The examiner indicated that the right shoulder did not have additional limitations due to the pain noted on the examination. Lastly, the examiner indicated that the Veteran did not have additional lost range of motion following repetitive use. In June 2016, the Veteran attended a VA examination. The Veteran reported experiencing flareups. The Veteran stated that during a flareup he experiences increased levels of pain, stiffness, and weakness. The Veteran also reported that he experiences stiffness and weakness that results in functional loss. Upon examination, the examiner indicated that the Veteran exhibited flexion 0 to 100 degrees, abduction 0 to 100 degrees, external rotation 0 to 30 degrees, and internal rotation 0 to 30 degrees. The examiner noted that there was no additional functional loss following repetitive testing. The examiner indicated that the Veteran did not have ankylosis of the shoulder. The examiner indicated that the Veteran's shoulder exhibited instability. The examiner indicated that the Veteran did not exhibit a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. The examiner indicated that the Veteran did not exhibit flail shoulder or malunion of the humerus. In July 2017, the Veteran attended a VA examination. The Veteran reported that he did not experience any flareups but that he was unable to engage in overhead work. Upon examination, the examiner indicated that the Veteran exhibited flexion 0 to 90 degrees, abduction 0 to 40 degrees, external rotation 0 to 40 degrees, and internal rotation 0 to 35 degrees. The examiner noted pain on the examination that resulted in functional loss. The examiner indicated that there was no functional loss after repetitive use testing. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran's shoulder did not exhibit instability. The examiner indicated that the Veteran did not exhibit a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. The examiner indicated that the Veteran did not exhibit flail shoulder or malunion of the humerus. In March 2020, the Veteran attended an additional examination. The Veteran reported experiencing constant right shoulder pain. The Veteran reported that he cannot work overhead, and he can't lift heavy objects. The Veteran reported experiencing flareups. Upon examination, the examiner indicated that the Veteran exhibited flexion 0 to 90 degrees, abduction 0 to 90 degrees, external rotation 0 to 90 degrees, and internal rotation 0 to 90 degrees. The examiner stated that the Veteran was unable to fully raise his arm. The examiner indicated that there was no additional lost range of motion following repetitive testing. The examiner estimated that the Veteran's range of motion following repetitive use was 0 to 90 degrees, abduction 0 to 90 degrees, external rotation 0 to 90 degrees, and internal rotation 0 to 90 degrees. The examiner estimated that the Veteran's range of motion during a flareup was flexion 0 to 90 degrees, abduction 0 to 90 degrees, external rotation 0 to 90 degrees, and internal rotation 0 to 90 degrees. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran's shoulder did not exhibit instability. The examiner indicated that the Veteran did not exhibit a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. The examiner indicated that the Veteran did not exhibit flail shoulder or malunion of the humerus. In February 2021, the Veteran attended a VA examination for this issue. The Veteran reported having flareups. The Veteran stated that flareups occur weekly. The Veteran stated that the right shoulder flare-ups are moderate and last for 45-60 minutes. The Veteran stated that the flare-ups are precipitated by lifting, pushing items, holding items, and mowing the yard. The Veteran stated that the right shoulder flare-ups are alleviated by rest, ice, and heat. Upon examination, the examiner indicated that the Veteran exhibited flexion to 120 degrees, abduction to 120 degrees, internal rotation to 60 degrees, and external rotation to 60 degrees. The examiner indicated that the Veteran had additional loss of function after three repetitions. The examiner indicated that the Veteran exhibited pain upon examination that caused functional loss. The examiner indicated that following repetitive testing, the Veteran exhibited flexion to 110 degrees, abduction to 110 degrees, internal rotation to 55 degrees, and external rotation to 55 degrees. The examiner indicated that estimated range of motion for use over time is as follows: flexion to 100 degrees, abduction to 100 degrees, internal rotation to 50 degrees, and external rotation to 50 degrees. The examiner indicated that range of motion during flareups is as follows: flexion to 90 degrees, abduction to 90 degrees, internal rotation to 45 degrees, and external rotation to 45 degrees. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran's shoulder did not exhibit instability. The examiner indicated that the Veteran did not exhibit a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. The examiner indicated that the Veteran did not exhibit flail shoulder or malunion of the humerus. The Board has also reviewed the Veteran's private treatment records. The Board notes that a November 2016 treatment included record range of motion measurements of range of abduction to 45 degrees, extension to 45 degrees, external rotation to 35 degrees, flexion to 48 degrees, and internal rotation to 70 degrees. The Board further notes a December 2016 treatment note included range of motion measurements of extension to 60 degrees, flexion to 136 degrees, abduction to 147 degrees, external rotation to 67 degrees, and internal rotation to 70 degrees. The Board has also reviewed the Veteran's VA treatment records. The Board notes that a July 2016 treatment note stated that "right shoulder able to do full APROM with significant pain past 90 degrees. Very tight past 150 degrees extension and abduction." In sum, the Board finds that the Veteran's right shoulder disability has remained consistent throughout the course of the appeal and a rating of 30 percent, but not higher is warranted. The Board finds that the medical evidence and lay statements of record demonstrate that the Veteran's right shoulder exhibits limitation of motion of the arm midway between side and shoulder. Thus, the Board finds that a rating of 30 percent, but not higher, is warranted throughout the course of the appeal. The Board has considered a rating in excess of 30 percent; however, the evidence of record does not show limitation of motion of the arm to 25 degrees from side. The Board has considered the Veteran's reports of pain on movement; however, the lost range of motion during a flareup, following repetitive testing, and after repetitive use over time do not show that the Veteran exhibited limitation of the arm to 25 degrees from side. The Board has also considered alternate diagnostic codes and the revised diagnostic code that could provide a rating in excess of 30 percent or a separate compensable rating; however, the evidence of record does not support any consideration of any alternative diagnostic codes. Lastly, the Board acknowledges that right shoulder instability was suspected, but the medical evidence of record later confirmed that the Veteran's shoulder did not exhibit instability. Thus, for the above stated reasons, the preponderance of the evidence is against a rating of 30 percent throughout the course of appeal, and the benefit of the doubt doctrine does not apply. Accordingly, the claim for entitlement to a rating in excess of 30 percent for a right shoulder disability, must be denied. 5. Entitlement to a disability rating in excess of 10 percent prior to July 31, 2017 for service-connected spondylosis of the lumbar spine The Board notes that the Veteran is challenging his initial rating. The Veteran's disability during this period of the appeal was awarded a 10 percent rating according to Diagnostic Code 5242. Arthritis under Diagnostic Code 5003 is to be rated on limitation of motion of the affected part as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in an abnormal gait or an abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Note (2) of the General Rating Formula provides that, 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 are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5242. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). A 10 percent rating contemplates IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent contemplates IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating contemplates IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating contemplates IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1) As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as a lumbosacral strain and degenerative arthritis of the spine. In April 2021, the Veteran's wife submitted a lay statement in support of the Veteran's claim. The Veteran's wife stated that her husband was in constant pain. The Veteran's wife also stated that she observed that the Veteran had difficulty bending and sitting comfortably for a long time. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in June 2010. Upon examination, the examiner indicated that the Veteran exhibited spine range of motion was as follows: flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left rotation to 30 degrees, and right rotation to 30 degrees. The examiner indicated that there were no muscle spasm, pain, or fatigue. The examiner indicated that the Veteran had no limitation from pain, fatigue, weakness, or lack of endurance with repetitive use. In June 2016, the Veteran attended an additional VA examination. The Veteran reported that he has lower back that bothers him on a daily basis, and he has difficulty with prolonged sitting, and repetitive bending. The Veteran denied lower extremity radicular symptoms. The Veteran reported flare ups. The Veteran stated that during a flareup, he feels increased pain and stiffness. Upon examination, the examiner indicated that the Veteran exhibited forward flexion 0 to 80 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The examiner indicated that the Veteran was able to perform repetitive testing with no additional lost range of motion. The examiner indicated that the Veteran did not exhibit guarding or muscle spasm. The Board has also reviewed the Veteran's medical treatment records. The Board finds that the Veteran's medical records do not show evidence of lost range of motion that was greater than what was recorded at the Veteran's VA examinations. In sum, the Board finds that the Veteran's disability has remained consistent during the period of the appeal and an increased rating is warranted. The Board acknowledges the Veteran's lost range of motion during a flareup that was recorded by the February 2021 VA examiner demonstrated that the Veteran exhibits lost range of motion that is best represented by a 20 percent rating. The Board has considered a rating in excess of 20 percent; however, the evidence of record did not show that the Veteran exhibited forward flexion of the spine to 30 degrees or less, ankylosis, or physician ordered bed rest. The Board has also considered if the Veteran's reports of lost range of motion due to pain warrant a rating in excess of 20 percent. The Board has evaluated the estimates provided by the February 2021 VA examiner and the Veteran's functional loss from repetitive testing and repetitive use do not result in forward flexion of the spine to 30 degrees or less or ankylosis. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that a 20 percent rating, but not higher, is warranted for the Veteran's lumbar spine disability prior to July 31, 2017. 6. Entitlement to a disability rating in excess of 40 percent from July 31, 2017, to September 9, 2020, for a lumbar spine disability As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as a lumbosacral strain, degenerative arthritis of the spine, and spondylosis of the lumbar spine. In July 2017, the Veteran attended a VA examination. The Veteran reported that he has chronic bilateral lumbar pain that is increased with bending and lifting, prolonged standing, walking and sitting, but did not report any flareups Upon examination, the examiner noted that the Veteran exhibited forward flexion 0 to 25 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 20 degrees, left lateral flexion 0 to 20 degrees, right lateral rotation 0 to 25 degrees, and left lateral rotation 0 to 25 degrees. The examiner noted pain noted during the examination and it causes functional loss. The examiner indicated that the Veteran was able to perform repetitive testing with no additional lost range of motion. The examiner indicated that the Veteran did not exhibit ankylosis, muscle spasm, or guarding. In March 2020, the Veteran attended a VA examination. The Veteran reported constant back pain. The reported experiencing flareups. The Veteran stated that during a flareup he has increased pain. Upon examination, the examiner indicated that the Veteran exhibited forward flexion 0 to 60 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The examiner indicated that pain was noted during the examination that affected forward flexion and extension. The examiner indicated that the Veteran was able to perform repetitive testing with no additional lost range of motion. The examiner provided range of motion estimates after repetitive use. The repetitive use estimates were as follows: forward flexion 0 to 60 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The examiner provided range of motion estimates during a flareup. The flare-up range of motion estimates were as follows: The repetitive use estimates were as follows: forward flexion 0 to 60 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The examiner indicated that the Veteran did not exhibit ankylosis, muscle spasm, or guarding. In February 2021, the Veteran attended a VA examination. The Veteran reported weekly flareups. The Veteran rated his flareups as moderate. The back flare-ups are moderate and his flareups will last for 45-70 minutes. The Veteran stated that his flareups are precipitated by sitting, standing, lifting, driving, and holding items. The Veteran stated that his flareups are alleviated by rest, ice, heat, stretching. The Veteran reported functional loss over time. The Veteran stated that he has difficulty with prolonged walking running, standing, and lifting items. Upon examination, the examiner indicated that the Veteran exhibited forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner indicated that the Veteran's non-weight bearing range of motion same as active motion. The examiner indicated that the Veteran exhibited additional loss of motion after three repetitions. The examiner indicated that the Veteran exhibited forward flexion to 55 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The examiner provided repeated use over time estimates. The use over time range of motion estimates were as follows: forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The examiner provided range of motion estimates during a flareup. The range of motion estimates during a flareup are as follows: forward flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Lastly, the examiner indicated that the Veteran did not exhibit IVDS, guarding, or muscle spasm. The Board has also reviewed the Veteran's medical treatment records. The Board finds that the Veteran's medical records do not show evidence of lost range of motion that was greater than what was recorded at the Veteran's VA examinations. In sum, the Board finds that the Veterans' disability has remained consistent during this period of the appeal and a rating increase is not warranted. The Board has considered a rating in excess of 40 percent; however, the record does not contain any evidence that the Veteran's spine exhibits signs or symptoms of ankylosis. Moreover, the record does not show that the Veteran's disability exhibited incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board has also considered the Veteran's reports of pain on movement, repetitive movement, and flareups; however, the Veteran's pain did not result in the development of ankylosis. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 40 percent for his lumbar spine disability since July 31, 2017, must be denied. 7. Propriety in the reduction of the Veteran's lumbar spine disability effective from September 10, 2020. The RO reduced the rating of the Veteran's lumbar spine disability during the course of his claim for increased rating. There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines if the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made. First, a rating action proposing the reduction must be prepared, setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons, therefore. The Veteran also must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level, and to request a hearing in accordance with the provisions of 38 C.F.R. § 3.105(e)(i)(2). Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the Veteran setting forth the reasons for the reduction and detailing the evidence upon which it is based. 38 C.F.R. § 3.105(e)(i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e)(i)(2)(i). Substantively, the standard to be applied to a rating reduction decision depends on how long the rating has been in effect. When a rating has continued at the same rating level for five years or more, the underlying VA examination supporting a reduction must be at least as complete as the VA examination that formed the basis for the original rating, and there must be a finding that the condition at issue is not likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be made if the evidence indicates that it is reasonably certain that improvement of the underlying injury or condition will be maintained under the "ordinary conditions of life." 38 C.F.R. § 3.344(a). However, if a rating level has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable. 38 C.F.R. § 3.344(c). In such cases, reexamination need only show actual improvement for a reduced rating to be appropriate. See id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer, at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also, Brown v. Brown, 5 Vet. App. 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See, Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See, Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). By way of procedural history, in a March 2020 rating decision, the RO informed the Veteran that his lumbar spine disability was proposed to be decreased to 20 percent disabling. In April 2020, the RO sent the Veteran a letter that explained the circumstances of the proposed reduction. In June 2020, the RO issued a rating decision that implemented the proposed reduction. The Board notes that the RO relied on the March 2020 VA examination results to support their decision to reduce the Veteran's disability rating. The Board acknowledges that the examination report did not show range of motion measurements that met the criteria for a 40 percent rating; however, the March 2020 VA examiner opined that there was a worsening of the Veteran's symptoms. In sum, the Board finds that the reduction of the Veteran's lumbar spine disability rating was improper. In this case, the March 2020 VA examination, which formed the basis for the rating reduction, contained conflicting evidence regarding the severity of the Veteran's disability and it did not show an actual improvement in the Veteran's disability. Moreover, the Board notes that the October 2020 Board decision found that the March 2020 VA examination was inadequate. Consequently, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. Therefore, for the above stated reasons, the Board finds that restoration of the Veteran's 40 percent rating for a lumber spine disability from September 10, 2020, is warranted. REASONS FOR REMAND TDIU The Board acknowledges that the Veteran's claims for increased ratings include a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. After a review of the record, the Board finds that the claim for TDIU has been raised by the record. The record reflects that the Veteran is unable to work due to his service-connected disabilities. Thus, the Board finds that the issue of entitlement to TDIU was raised by the record and was part and parcel to the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447. The matters are REMANDED for the following action: The RO should take all steps that it deems necessary to properly develop the Veteran's claim for TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.