Citation Nr: 21041743 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-38 171 DATE: July 10, 2021 ORDER An initial rating in excess of 10 percent for residuals, thoracic strain ("back disability") is denied. FINDING OF FACT For the entire period on appeal, the Veteran's back disability was manifested by pain, normal forward flexion of the thoracolumbar spine, and a combined range of motion of the thoracolumbar spine of, at worst, 210 degrees, with no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis of the thoracolumbar spine, or incapacitating episodes requiring medically prescribed bed rest due to intervertebral disc syndrome. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2011 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted entitlement to service connection for thoracic strain and assigned a noncompensable rating, effective from January 1, 2013. The Veteran timely perfected an appeal of the initial rating assigned. See February 2015 Notice of Disagreement; June 2016 Statement of the Case; August 2016 VA Form 9. In a June 2016 rating decision, the RO increased the rating for the Veteran's back disability to 10 percent, effective from January 1, 2013. As the June 2016 rating decision did not represent a total grant of benefits sought on appeal the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In July 2019, the Board remanded this matter for additional development. The Veteran has a separate appeal for issues related to tinnitus, neuropathy in the upper extremities, and hypogeusia. However, he requested a hearing for that appeal, which is still pending. Accordingly, those issues will be addressed in a separate decision following his hearing. Increased Rating The Veteran contends that he is entitled to a higher disability rating for his back disability, which is currently assigned a 10 percent rating under C.F.R. § 4.71a, Diagnostic Code 5237 (lumbosacral or cervical strain). A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243. All service-connected spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board notes that during the pendency of the appeal, 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. However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged under the new rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the general rating formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the 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 spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the incapacitating episodes rating formula, a 10 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Under the former rating criteria, Diagnostic Code 5242 evaluated Degenerative arthritis of the Spine (see also Diagnostic Code 5003). 38 C.F.R. § 4.71a, Code 5242 (2020). Under the new criteria, Code 5242 applies to Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either diagnostic code 5003 or 5010). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). Under the former rating criteria, Diagnostic Code 5243 evaluated Intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Code 5243 (2020). Under the new criteria, Code 5243 still applies to Intervertebral disc syndrome; but more specifically as this code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). B. Factual Background Turning to the evidence of record, a January 2012 service treatment record shows that the Veteran reported thoracic back spasm after a thoracic back strain while lifting heavy luggage. He denied bowel or bladder symptoms. An August 2012 service treatment record shows that the Veteran reporting back pain. He denied incapacitating or radiating pain. He was diagnosed with thoracic sprain. The Veteran was afforded a VA examination in September 2012. He reported experiencing sharp upper back pain several time a day, aggravated by prolonged standing and riding in a car. He indicated that his current pain level was 4/10 and that, at worst, his pain level was 5/10. He denied incapacitating episodes of back pain in the past year. He reported that he treated his back pain with Motrin and Flexeril. He reported daily flare-ups of moderate back pain precipitated by prolonged standing and riding in a car and alleviated with medication. He also reported stiffness, easy fatigue, spasms, and weakness. He denied decreased motion, numbness, paresthesias, leg/foot weakness, bladder complaints, bowel complaints, erectile dysfunction, and falls. On examination, the Veteran's spinal curvatures were normal and symmetrical. There was abnormal spinal curvature of levoscoliosis. There was no evidence of muscle spasm, guarding, or ankylosis. Straight leg testing was negative bilaterally, and there were no nonorganic physical signs observed. Range of motion testing was normal, with no objective evidence of pain. With three repetitions, there was no loss of motion secondary to pain, weakness, or lack of endurance. The Veteran had normal reflexes, sensation, and motor function. The Veteran was afforded a VA back conditions examination in December 2014. He reported constant, sharp pain at a severity level of 7/10. He denied radiation of pain, numbness/tingling in the lower extremities, and bowel/bladder dysfunction. He reported flare-ups three to four times per week precipitated by prolonged standing and walking and alleviated by stopping activity. He also reported that bending/twisting is difficulty during flare-ups. Range of motion testing was normal, with no pain noted on exam. There was no evidence of pain with weight bearing or localized tenderness/pain to palpation. After three repetitions, there was no additional loss of function or range of motion. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flare-ups. There was no evidence of guarding or muscle spasm. Muscle strength, reflexes, and sensory exams were normal, and straight leg testing was negative bilaterally. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis. The examiner indicated that the Veteran did not have any other neurologic abnormalities or findings related to his back condition. The Veteran did not have IVDS. The Veteran's gait was normal, and he was able to walk on his heels, toes, and in tandem without difficulty. X-rays did not show arthritis. In his January 2015 notice of disagreement, the Veteran reported back pain affecting prolonged sitting and standing. During a February 2016 VA new patient visit, the Veteran reported daily back pain at a severity of 5/10. He denied numbness in his feet. On examination, the Veteran's spine appeared linear, and he had full range of motion without difficulty. He was able to walk on toes and heels without any problems, and his gait and reflexes were normal. X-rays showed "transitional S1 vertebrae with pseudoarticulation of the left. No other significant abnormality." An April 2016 VA treatment record shows that the Veteran reported back pain at a severity of 6/10. His gait and station were normal, and he had full range of motion with no deformity. A neurologic exam was "grossly" within normal limits. A March 2017 VA treatment record shows that the Veteran reported dull, aching back pain of a severity of 5/10 and minimal stiffness in the morning. He denied numbness in his legs. X-rays showed normal alignment, preserved disc spaces, no spondylolisthesis, and no compression fractures. A September 2018 VA treatment record shows that the Veteran reported chronic low back pain during a new patient visit. He denied bowel or bladder complaints and numbness or tingling. On examination, his gait was normal. The Veteran was afforded a VA back conditions examination in January 2020. He reported a constant, dull ache centered between his shoulder blades. He denied taking medication for his back pain. He reported that he has to move around and/or do twisting movements to relieve the pain. He denied any surgery or emergency room visits for pain control. He denied flare-ups and changes in range of motion due to pain. He reported that he was going to college and that his back pain increases with sitting at a desk. Range of motion testing revealed forward flexion to 90 degrees (normal), extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees (normal). There was no pain noted on exam, and there was no evidence or pain with weight bearing or localized tenderness/pain to palpation. There was no evidence of pain with passive range of motion testing, and there was no evidence of pain with non-weight bearing. After three repetitions, there was no additional loss of function or range of motion. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The examiner noted that the Veteran reported flare-ups of pain when sitting at a desk in school; however, the Veteran denied any change in range of motion during these flares. There was no evidence of guarding or muscle spasm. Muscle strength, reflexes, and sensory exams were normal, and straight leg testing was negative bilaterally. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis. The examiner indicated that the Veteran did not have any other neurologic abnormalities or findings related to his back condition. The Veteran did not have IVDS. X-rays were normal. C. Analysis Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating in excess of 10 percent were not met at any time during the appeal period. In order to warrant the next higher rating of 20 percent under the General Rating Formula, the evidence must show 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. In this case, the evidence does not indicate that forward flexion of the thoracolumbar spine was limited to 60 degrees or less, or that the combined range of motion of the thoracolumbar spine was 120 degrees or less. Forward flexion was normal during the September 2012, December 2014, and January 2020 VA examinations, and the Veteran's combined range of motion was normal, except when it was measured at 210 degrees during the January 2020 VA examination. Nor does the evidence indicate that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The September 2012, December 2014, and January 2020 VA examiners found no evidence of localized tenderness, muscle spasm, or guarding. Although the Veteran reported muscle spasm during the September 2012 examination, and the examiner noted an abnormal spinal curvature of levoscoliosis, the examiner specifically noted no evidence of localized tenderness, muscle spasm, or guarding. Moreover, the Veteran's gait, station, and posture were consistently normal during VA examinations and VA treatment. The evidence also shows that the Veteran's back disability was not manifested by favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine, as defined in the notes to the General Rating Formula. Accordingly, a rating greater than 10 percent is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a. In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. For a 20 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 30 and 60 degrees, or the combined range of motion must be less than 120 degrees, or there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, but pain alone does not warrant a higher disability rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss but is just one factor to be considered when evaluating functional impairment). In order to assign a higher rating based on functional loss due to pain, the pain "must actually affect some aspect of 'the normal working movements of the body.'" Id. at 43 (quoting § 4.40). In Mitchell, the Court agreed that pain alone as a basis for a higher rating would produce such "absurd results" as for example where a claimant who experiences very slight pain throughout the range of motion of the knee would receive a 50 percent disability rating under DC 5261 and a 30 percent disability rating under DC 5260, whereas a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to 20 degrees would only receive disability ratings of 20 percent and 30 percent respectively. Id. Here, while the Veteran reported back pain, this symptom is specifically contemplated by his rating, and there was no evidence of pain with thoracolumbar spine range of motion during the September 2012, December 2014, and January 2020 VA examinations. Further, the examiners noted no additional functional loss or limitation of motion due to pain. Similarly, although the evidence shows that the Veteran reported flare-ups of back pain, the Veteran's combined range of motion was, at worst, just 30 degrees from normal, with no additional functional loss or limitation in range of motion with repetitive testing, and his symptoms were treated conservatively with pain medication. Notably, the Veteran denied any additional limitation of range of motion during flare-ups during the January 2020 VA examination. Moreover, even acknowledging that the Veteran's pain may at times have resulted in additional functional loss than that objectively demonstrated, especially during flare-ups, and even when such functional limitations are considered, the evidence does not reflect functional impairment comparable to forward flexion of the thoracolumbar spine less than 60 degrees; combined range of motion of the thoracolumbar spine less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Thus, while the Board notes the Veteran's complaints of pain, the evidence does not show that pain causes additional functional loss beyond that recorded on range of motion testing. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. As discussed above, the Veteran's gait, posture, and range of motion were essentially normal, even with consideration of pain and other such factors, and the Board finds that the Veteran's rating of 10 percent adequately encompasses the Veteran's functional impairment. Accordingly, the Veteran's disability picture does not meet or approximate the criteria described for a rating greater than 10 percent under the General Rating Formula based on limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. The General Rating Formula also indicates that associated neurologic abnormalities are to be rated separately under the appropriate diagnostic code. Here, there is no evidence of any neurologic abnormalities associated with the Veteran's back disability. As discussed above, the Veteran consistently denied numbness/tingling of the lower extremities, and muscle strength, reflex, and sensation testing were normal on all VA examinations. Moreover, all of the VA examiners noted no evidence of radiculopathy or other neurologic abnormalities. Similarly, the Veteran denied bowel, bladder, and erectile dysfunction during VA examinations and VA treatment. Based on the foregoing, the Board finds that a preponderance of the evidence shows that the Veteran does not experience any neurologic abnormalities associated with his low back disability, to include lower extremity radiculopathy. Accordingly, the Board finds that a separate rating is not warranted for any objective neurological symptoms. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 20 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In this case, the evidence of record does not show that the Veteran had incapacitating episodes as defined by VA regulations during this period. Nor does the evidence reflect a diagnosis of IVDS. Although the Veteran indicated that he had flare-ups of back pain, there is no evidence from any of the Veteran's medical providers that bedrest was prescribed by a physician for treatment of his spine disability. In this regard, the evidence shows that the Veteran's back condition has been treated conservatively with pain medications and chiropractic and physical therapy. The Board accordingly finds that there is no credible evidence indicating that the Veteran's reported low back flare-ups resulted in incapacitating episodes under the criteria set forth in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes sufficient to warrant a higher rating based upon incapacitating episodes. Therefore, a disability rating in excess of 10 percent under Diagnostic Code 5243 is not warranted. Moreover, the revised criteria, effective from February 7, 2021, would not result in a higher rating because without evidence of incapacitating episodes such that Diagnostic Code 5243 applies, the revisions have no effect on the adjudication of the Veteran's claim after that date. In other words, applying Diagnostic Code 5243 both before and after February 7, 2021 does not result in a higher rating. The Board recognizes the Veteran's sincere belief that he is entitled to a higher rating. The Veteran is competent to report his symptoms and credible in his belief that his back disability warrants a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the back impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Thus, while the Board acknowledges the Veteran's reports of back symptomatology, especially exacerbations of back pain, the evidence in this case shows that the 10 percent rating assigned appropriately compensates the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.4; DeLuca. The Board has considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings discussed above are the most appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the Board finds that the 10 percent rating assigned for the Veteran's back disability is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). (Continued on the next page) For the foregoing reasons, the Board finds that the claim for a higher rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.