Citation Nr: 22012307 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-21 558 DATE: March 3, 2022 ORDER A rating in excess of 10 percent for service-connected lumbar spine stenosis with intervertebral disc syndrome (IVDS) prior to May 18, 2021, and a rating in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to May 18, 2021, the Veteran's service-connected lumbar spine stenosis with IVDS was not manifested by, considering his pain and resultant functional impairment, including during flare-ups, forward flexion greater than 30 degrees but not greater than 60 degrees, combined motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Since May 18, 2021, the Veteran's service-connected lumbar spine stenosis with IVDS was manifested by, considering his pain and resultant functional impairment, including during flare-ups, forward flexion 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to May 18, 2021, the criteria for a rating in excess of 10 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(2), 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242, 5243, 19.9 (b)(2), 10.904 (d)(2). 2. Since May 18, 2021, the criteria for a rating in excess of 20 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(2), 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, DCs 5242, 5243, 19.9 (b)(2), 10.904 (d)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2008 to May 2010 with additional unverified prior active service. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board). A transcript of the hearing has been associated with the claims file. In February 2021, the Board remanded this issue to the VA Regional Office (RO) for additional development, the claims file has been returned to the Board for adjudication. Entitlement to a rating in excess of 10 percent for service-connected lumbar spine stenosis with IVDS prior to May 18, 2021, and a rating in excess of 20 percent thereafter. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two ratings are potentially applicable, the higher rating will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the rating of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of increased rating claims, as is the case here, is from one year before the claim was filed; in this case, October 10, 2013, one year prior to the Veteran's October 10, 2014, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record. The Veteran's service-connected lumbar spine stenosis with IVDS has been rated based upon limitation of motion under the General Rating Formula for Diseases or Injuries of the Spine, specifically DC 5242, contemplating degenerative arthritis. His disability has also been rated considering DC 5243, contemplating IVDS. See 38 C.F.R. § 4.71a, DCs 5242, 5243. By the June 2015 rating decision on appeal, the Veteran's claim for a rating in excess of 10 percent for his service-connected lumbar spine stenosis was denied; during the appeal, by a July 2021 rating decision, the RO granted an increased rating, 20 percent, effective May 19, 2021. In this regard, as discussed below, the pertinent rating criteria under which the Veteran's disability is rated directs the rater to consider that any associated objective neurologic abnormalities should be rated separately under an appropriate rating criteria. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. By a December 2010 rating decision, when the RO granted service connection for left lower extremity neuritis. Thus, while the Board will include recitation the Veteran's neurological findings related to his left lower extremity found on examination herein for the sake of completeness, analysis of such is not required as service connection has been in place for the neurological abnormalities of the left lower extremity attributed to his service-connected lumbar spine stenosis with IVDS for the entire appellate period. Also, the Board will also include recitation of the Veteran's neurological abnormalities related to his right lower extremity found on examination herein for the sake of completeness, analysis of such is not required as the evidence demonstrates that such are not attributed to his service-connected lumbar spine stenosis with IVDS. Further, the Board will include recitation of the lay statements and clinical findings related to the limitations on the Veteran's employability due to his service-connected lumbar spine stenosis with IVDS herein for the sake of completeness. A claim of entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is of record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim of entitlement to a TDIU is part of an increased rating claim when such is raised by the record). However, a TDIU and special monthly compensation (SMC) based on the Veteran having a single service-connected disability rated as 100 percent and separate and distinct additional service-connected disabilities independently ratable at 60 percent have been in effect during the entire appellate period. Analysis of the evidence regarding employability is thus not required. 38 U.S.C. § 1114 (s); 38 C.F.R. §§ 4.16, 3.350 (i). Arthritis established by X-ray examination findings is rated on the basis of limitation of motion of the affected joints. 38 C.F.R. § 4.71a, DC 5003. Specific to disabilities of the spine, the rating schedule provides for the evaluation of all spine disabilities under the General Rating Formula, unless the disability is rated under the Formula for Rating IVDS Based on Incapacitating Episodes, under DC 5243. See id. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. These criteria are to be applied irrespective of whether there are symptoms such as pain, whether or not it radiates, stiffness, or aching in the affected area of the spine. Id. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) 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. Id. 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. See also Plate V, 38 C.F.R. § 4.71a. The Board notes that the requirement of establishing ankylosis under the General Rating Formula for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). In this regard, ankylosis is defined as immobility of a joint, which, in essence, is complete limitation of motion. Id. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks in the last 12 months, a 20 percent rating is warranted for such episodes having a total duration of at least two weeks but less than four weeks, a 40 percent rating is warranted for such episodes having a total duration of at least four weeks but less than six weeks, and a maximum 60 percent rating is warranted for such episodes having a total duration of at least six weeks. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id, Note 1. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain 'must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss' warranting a higher rating). With respect to disabilities of the joints, consideration is given as to whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The provisions of sections 38 C.F.R. §§ 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995) (holding that the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under 38 C.F.R. § 4.40). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a. Under the revised regulations, as to the only provision relevant to the claim decided herein, effective February 7, 2021, DC 5243, contemplating IVDS, is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; the rater is directed to assign DC 5242, contemplating degenerative arthritis, degenerative disc disease other than IVDS, for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, DC 5243. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. In May 2014, during VA treatment, the Veteran reported that was walking back and forth to physical therapy, one-half of one mile each way, having to stop and rest frequently due to left lower extremity symptoms. In an April 2015 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with lumbar stenosis with IVDS involving the left lower extremity in the sciatic nerve. The Veteran reported constant low back pain, worse with walking, standing, lifting, and bending, rated as a 10 on a 10-point pain scale. He reported a pressure sensation, stiffness, weakness, pain travelling down the left thigh, and numbness in the left hip. There were no bladder or bowel symptoms. The Veteran reported flare-ups, describing such as impairing working, lifting, shopping, sports, and walking. The examiner estimated that the Veteran had range of motion limited as follows during a flare-up: flexion to 10 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. As to his regular range of motion demonstrated on examination, he had flexion to 90 or greater, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees or greater, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 or greater, each without objective evidence of painful motion. There was no additional limitation of motion following repetitive use testing. The Veteran had functional loss or impairment, described as less movement than normal and weakened movement. He had localized tenderness or pain to palpation over the joints or soft tissue described as tenderness, without no guarding. There was normal strength in the hip and knee, active movement against some resistance in the right ankle plantar flexion and right great toe extension. There was no atrophy. His reflexes were normal reflex in the knee and hypoactive in the ankles, and there was normal sensation in all but the right thigh and knee and right foot and toes, where it was decreased. There was negative straight leg raise. The Veteran had radiculopathy, with intermittent pain and numbness in the left lower extremity, localized to the sciatic nerve, described as mild. There were no other neurological findings. The Veteran had IVDS, without incapacitating episodes in the last twelve months. He used a brace, constantly. He had scars, and none were painful or unstable or encompassed a total area greater than 39 square centimeters. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. There was no vertebral fracture. The impact of the Veteran's disability on his ability to work included impaired lifting and prolonged bending, walking, and standing, as well as impaired carrying, squatting, running, jumping, and climbing, without effect on sedentary work. The examiner discussed that the Veteran's gait abnormality was due to his right foot drop due to residuals, gunshot wound, and his right lower extremity weakness and numbness were not related to his service-connected lumbar stenosis with IVDS. During his November 2019 Board hearing, the Veteran reported that his back hurt all of the time, that he does not have free movement and cannot bend over. He reported that he had to move positions and his pain was worse with activity. He reported that he could not walk a lot or carry things. He reported that he used back support and uses cream to relieve his back pain. He reported that he had problems in his last job painting due to climbing ladders and had to take time off of work. He reported that sitting for long periods of time working as a clerk at VA was difficult. In an April 2021 VA caregiver assessment, the Veteran reported that putting on his pants was difficult due to his constant back pain. He rated his back pain on a normal day as four or five on a ten-point pain scale, and eight or nine when movement, standing up or lying in one position for too long. He reported that he used medication and a back brace. He reported that he was able to drive. The examiner reported that the records did not support any severe limitations with conducting the activities of daily living relative to reports of pain and that the Veteran's report that he could walk for only three minutes was not consistent with the records or diagnosis of spinal stenosis or foot drop treated with braces and a cane. She reported that there were no limitations cited to support the conclusion that he could walk for fifteen minutes. In a May 2021 DBQ, the Veteran was diagnosed with lumbar spine stenosis. He reported that he had not worked since his separation from service. He reported constant pain, increased with standing or sitting in one position, treated with cream, massages, and over-the-counter medication. He denied right lower extremity pain and reported left lower extremity pain, increased with activity, as well as numbness in the buttock to the knee. He denied appointments or procedures in the past twelve months, and noted that he wore a soft back brace when he went out. The examiner specifically found pain only on active motion, with no pain on passive, weight bearing, and non-weight bearing motion noted. The examiner specifically found no additional loss of range of motion during flare-ups. The Veteran reported such flares if he sat or stood for prolonged periods of time; he also reported less motion with repetitive use over time. The examiner reported that the Veteran's abnormal range of motion itself does not contribute to functional loss; the Veteran demonstrated flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees, each with pain. There was no crepitus, and the Veteran was able to perform repetitive use testing without additional loss of motion. The examiner reported that while the Veteran was not being examined immediately after repetitive use over time, the evidence did not suggest that pain, fatiguability, weakness, lack of endurance, or incoordination significantly limits functional ability with repeated use over time. The examiner rendered the same opinion as to the Veteran's flare-ups. The examiner reported that any localized tenderness, as the Veteran flinched on palpation, did not result in abnormal gait or spinal contour. The examiner reported that additional factors contributing to the disability included interference with sitting and standing. There was active movement with some resistance on the right ankle plantar flexion, dorsiflexion, and great toe extension, normal movement in the right hip and knee. All movement was normal on the left. There was muscle atrophy, not due to the Veteran's service-connected disability and due to his peroneal nerve condition. The Veteran had normal reflexes and sensation, with negative bilateral straight leg raise. The Veteran radiculopathy on the left, described as mild, constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness, without other signs and symptoms of radiculopathy. There was no ankylosis. The Veteran's IVDS did not require bed rest prescribed by a physician in the past twelve months. The Veteran regularly used a brace. There were no other pertinent physical findings, complications, conditions, signs, or symptoms; there were no scars. The impact of the Veteran's disability on his ability to perform any type of occupational task including limited prolonged standing and sitting and repetitive lifting and bending. As to each of the periods during the current appeal considered herein, the Board has considered the lay statements of the Veteran describing his pain and functional limitation related to his service-connected lumbar spine stenosis with IVDS. He is competent to report the sensations and resultant limitation and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. Also, as to each of the periods during the current appeal considered herein, a separate 10 percent rating under DC 5003 for arthritis of the lumbar spine may not be assigned, as this would result in compensating twice for manifestations of the same disability, limited motion, in violation of the rule against pyramiding. 38 C.F.R. § 4.14. Further, as to each of the periods during the current appeal considered herein, the Board has considered whether DC 5243, contemplating IVDS, under the old or new regulations, may serve as a basis for an increased rating, however, it finds that such is not warranted. The Veteran, as discussed above, has been diagnosed with IVDS. However, the evidence of record is silent for any incapacitating episodes contemplated by the pertinent rating criteria, episodes of acute signs and symptoms of IVDS that required prescribed bed rest and treatment by a physician at any time during the appeal or findings of disc herniation with compression and/or irritation of the adjacent nerve root, as is required for IVDS pursuant to the new regulations concerning DC 5243. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, DC 5243. For the period prior to May 18, 2021, considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran's service-connected lumbar spine stenosis with IVDS did not approach the severity contemplated for a rating in excess of 10 percent, the next higher rating of 20 percent, under the pertinent regulatory criteria. The Board has considered in its analysis the Veteran's pain and resultant functional impairment. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. As noted, in the April 2015 DBQ, the Veteran demonstrated forward flexion to 90 degrees or greater, extension to 10 degrees or greater, right lateral flexion to 25 degrees, and left lateral flexion and right and left lateral rotation each to 30 degrees or greater, combined as 215 degrees, without ankylosis or immobility of a joint during a flare-up or symptoms resulting in abnormal gait or spinal contour. Chavis, 34 Vet. App. 1, 20. Such warrants a 10 percent rating under General Rating Formula for Diseases and Injuries of the Spine contemplating combined range of motion of the thoracolumbar spine greater than 120 degrees bur not greater than 235 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating, a 20 percent rating, requires forward flexion greater than 30 degrees, but not greater than 60 degrees, 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. Id. Such was not seen in the clinical or lay evidence dated during this period, prior to May 18, 2021; such was not recorded in the April 2015 DBQ nor does it appear that such was recorded in the Veteran's treatment records. His orthopedic manifestations, even considering his most severe motion demonstrated or estimated and thus considering his pain and resultant functional limitation, did not approach the severity contemplated for a 20 percent rating. In this finding, the Board has considered the estimated range of motion provided by the examiner during the April 2015 DBQ. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. The examiner, at that time, in the narrative portion of the examination, estimated range of motion during flare-ups of flexion to 10 degrees, extension to 5 degrees, and right and left lateral flexion and right and left rotation each to 5 degrees. The Board finds such a wild approximation incongruent with all other evidence of record. Significantly, at the same examination, the Veteran demonstrated markedly better range of motion, without pain. The examiner at the next VA examination, the May 2021 DBQ specifically found no additional loss of range of motion during flare-ups. The examiner, in their April 2015 estimation of such significantly reduced range of motion, did not explain such or otherwise provide the Board a basis for any conclusion that the Veteran is limited as such. For the period since May 18, 2021, considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran's service-connected lumbar spine stenosis with IVDS do not approach the severity contemplated for a rating in excess of 20 percent, the next higher rating of 40 percent, as the criteria providing a 30 percent do not pertain to the thoracolumbar spine, under the pertinent regulatory criteria. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board has considered in its analysis the Veteran's pain and resultant functional impairment. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. As noted, in the May 2021 DBQ, the Veteran's worst range of motion considering his pain included forward flexion to 60 degrees, extension to 20 degrees, right and lateral flexion each to 25 degrees, and right and left lateral rotation each to 30 degrees, combined as 190 degrees. No ankylosis or immobility of a joint during a flare-up was found. Chavis, 34 Vet. App. 1, 20. Such warrants a 20 percent rating under General Rating Formula for Diseases and Injuries of the Spine contemplating forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating, a 40 percent rating, requires forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Such was not seen in the clinical or lay evidence dated during this period, since May 18, 2021; such was not recorded in the May 2021 DBQ nor does it appear that such was recorded in the Veteran's treatment records. His orthopedic manifestations, even considering his most severe motion demonstrated or estimated and thus considering his pain and resultant functional limitation, did not approach the severity contemplated for a 40 percent rating. (Continued on the next page) In sum, based on the foregoing, the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's service-connected lumbar spine stenosis with IVDS prior to May 18, 2021, and a rating in excess of 20 percent thereafter. The Board finds the benefit of the doubt doctrine is thus not applicable as the evidence persuasively favors one side. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran's claim is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.