Citation Nr: 23023924 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 18-28 927 DATE: April 25, 2023 ORDER 1. Entitlement to an initial increased rating in excess of 10 percent for trochanteric pain syndrome of the left hip (limitation of flexion of left thigh) prior to August 4, 2022, and a compensable rating thereafter is denied. 2. Entitlement to an initial increased rating in excess of 10 percent for trochanteric pain syndrome of the left hip (impairment of left thigh) is denied. 3. Entitlement to an initial compensable rating for trochanteric pain syndrome of the left hip (limitation of extension of left thigh) is denied. 4. Entitlement to an increased rating in excess of 10 percent for lumbosacral strain with degenerative arthritis prior to August 4, 2022, and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to August 4, 2022, the Veteran is in receipt of the maximum schedular rating for limitation of flexion of the left thigh and is not entitled to a separate or increased rating under another diagnostic code. From August 4, 2022, the Veteran's left thigh disability is not manifested by flexion limited to 45 degrees or more. 2. The Veteran's impairment of the left thigh is not manifested by in abduction limited to motion lost beyond 10 degrees, the inability to cross his legs, or the inability to toe out more than 15 degrees. 3. The Veteran's limitation of extension of the left thigh is not manifested by limitation of extension to 5 degrees. 4. Prior to August 4, 2022, lumbosacral strain with degenerative arthritis was not manifested by forward flexion of the thoracolumbar spine to 60 degrees or less 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. From August 4, 2022, the Veteran's lumbosacral strain is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for limitation of flexion of the left thigh prior to August 4, 2022, and a compensable rating thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251, 5253. 2. The criteria for an initial increased rating in excess of 10 percent for impairment of left thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252. 3. The criteria for an initial compensable rating for limitation of extension of the left thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251. 4. The criteria for an increased rating in excess of 10 percent for lumbosacral strain with degenerative arthritis prior to August 4, 2022, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5237, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States United States Navy from November 1998 to November 2002. In November 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. In a May 2022 decision, the Board remanded the issues involving increased ratings for limitation of flexion of the left thigh and for lumbosacral strain to request that the agency of original jurisdiction (AOJ) attempt to obtain potentially relevant private treatment records and afford the Veteran new VA examinations. As to the private treatment records, there is an undated statement from Dr. Robert Jolin, wherein he noted he had performed x-rays of the Veteran in January 2022, which showed mechanical stress on the left side. The Board was attempting to obtain the treatment records from Dr. Jolin, as they appear to be relevant to at least some of the issues on appeal. In compliance with the Board's remand instructions, in June 2022, the AOJ wrote to the Veteran asking him to complete a form to allow VA to obtain Dr. Jolin's records. In August 2022, the AOJ wrote to the Veteran again asking him to provide VA with permission to obtain Dr. Jolin's records (and any other relevant treatment records). The Veteran did not respond to the letters, which is unfortunate. See 38 C.F.R. § 3.159(c)(1)(i) (stating, "The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians."). In August 2022, the Veteran underwent VA examinations for the bilateral hip and lumbar spine disabilities. Accordingly, the Board finds that there has been substantial compliance with its prior remand directives and adjudication of the case on the merits may proceed. In May 2022, the Board also remanded a claim for service connection for a right hip disability, which the Veteran claimed was secondary to the service-connected left hip disability. In an October 2022 rating decision, the AOJ granted service connection for a right hip disability. As this is a full grant of the benefit sought (service connection), this issue is no longer part of the current appeal. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. 1. Entitlement to an initial increased rating in excess of 10 percent for limitation of flexion of the left thigh prior to August 4, 2022, and a compensable rating thereafter Procedural History In the September 2017 rating decision currently on appeal, service connection for left hip trochanteris pain syndrome was granted, and the Veteran was assigned a 10 percent rating effective March 12, 2015. At the November 2021 Board hearing, the Veteran testified that his disability had worsened, and in a May 2022 Board decision, the issue was remanded to afford the Veteran a new VA examination. In an October 2022 rating decision, the Veteran's disability was recharacterized as left hip trochanteris pain syndrome (limitation of flexion) and was assigned a noncompensable rating effective August 4, 2022. The October 2022 rating decision also granted a separate rating for left hip trochanteris pain syndrome (impairment of thigh) and assigned a 10 percent rating, effective August 4, 2022, and separate service connection for left hip trochanteris pain syndrome (limitation of extension), which was assigned a noncompensable rating effective August 4, 2022. Rating Criteria While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these DCs were not changed. Under DC 5251, a 10 percent rating is the maximum rating assignable for limitation of extension of the thigh to 5 degrees. Under DC 5252, limitation of flexion of the thigh, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is assignable if flexion is limited to 30 degrees. A 30 percent rating is assignable if flexion is limited to 20 degrees, and a 40 percent rating is assignable if flexion is limited to 10 degrees. Under DC 5253, impairment of the thigh, the criteria for a 10 percent rating are the inability to cross the legs or limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees. The criterion for the next higher rating, 20 percent, is abduction limited to 10 degrees. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Prior to August 4, 2022 The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an initial increased rating in excess of 10 percent for limitation of flexion prior to August 4, 2022. The reasons follow. During this part of the appeal period, the Veteran's left hip disability was rated under DC 5251. As mentioned above, under DC 5251, a 10 percent rating is the maximum rating assignable for limitation of extension of the left thigh to 5 degrees. 38 C.F.R. § 4.71. Accordingly, a higher schedular rating is not available. Although this disability is characterized as limitation of flexion, it is paradoxically rated under the DC for limitation of extension. An August 2017 VA examination shows that the Veteran was found to have normal motion of the left hip on flexion, extension, internal rotation, external rotation, abduction and adduction, and adduction was not limited such that the Veteran could not cross his legs. No pain was noted on the examination, and there was no evidence of pain with weight bearing, on non-weight bearing, or on passive range of motion testing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional functional loss after three repetitions. The examiner documented that the Veteran was not examined immediately after repetitive use over time, but the examiner found that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran reported flareups manifested by pain in lateral left hip after several days working on his feet, however the examination was not conducted during a flareup, and the examiner found that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups. The Veteran was found to have full normal muscle strength on left hip flexion, extension, and abduction, with no muscle atrophy. The Board has reviewed the evidence of record and finds that an initial disability rating in excess of 10 percent for limitation of flexion is not warranted during the appeal period. Notably, the Veteran is already in receipt of the maximum schedular disability rating for his left hip limitation of flexion and his disability picture is not so unique as to be outside of what is contemplated by the schedular rating. The record does not support additional evaluation of the Veteran's left hip during this part of the appeal period. For example, the evidence does not support that the Veteran's left hip disability during this period of time was manifested by flexion limited to 45 degrees to warrant a separate rating under DC 5252, or inability to cross the legs or limitation of rotation of the left thigh where the Veteran could not toe-out more than 15 degrees to warrant a separate rating under DC 5253. Similarly, the evidence does not support an increased rating under these other diagnostic criteria. Thus, a rating higher than 10 percent for limitation of flexion of the left thigh is not warranted. ? From August 4, 2022 The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an initial compensable rating for limitation of flexion of the left thigh from August 4, 2022. The reasons follow. During this part of the appeal period, the Veteran's disability is rated under DC 5252. The evidence shows that the Veteran's limitation of flexion does not result in flexion limited to 45 degrees to warrant a 10 percent rating during this part of the appeal period. Instead, the Veteran's left hip flexion was to 60 degrees, as documented in the August 2022 VA examination report. The August 2022 VA examiner also documented that the Veteran's range of motion contributed to functional loss, resulting from prolonged squatting or crossing legs or walking with a compensatory antalgic gait. Pain was found on flexion, extension, abduction, external rotation, and internal rotation. The Veteran's passive range of motion for flexion was the same as his active range of motion, with pain in the same areas. Pain was found on weight-bearing, nonweight-bearing, active motion, passive motion, on rest/non-movement, and caused the same functional loss previously mentioned. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional functional loss after three repetitions. The Veteran was not examined immediately after repetitive use over time, and procured evidence (statements from the Veteran) did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. The Veteran was found to have no muscle atrophy or ankylosis on the left, and did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy. The record does not support additional evaluation of the Veteran's left hip during this part of the appeal period. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the evidence persuasively weighs against flexion of the left thigh limited to 45 degrees to warrant a 10 percent rating under DC 5252. Taking into account the evidence of record indicating the Veteran's complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in flexion limited to 45 degrees or more. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. Moreover, granting separate ratings under additional DCs for the same manifestation, specifically symptoms of pain in limitation of motion, would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Here, the October 2022 rating decision granted separate ratings for impairment of left thigh and noted that such ratings were based upon the Veteran's painful abduction, adduction, extension, external rotation, flexion, and internal rotation that resulted in limitation of motion. Thus, as left hip pain resulting in functional limitation has been considered in ratings for the Veteran's other disabilities, such cannot be the basis of a compensable rating for limitation of flexion. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a 10 percent rating for limitation of flexion from August 4, 2022 is warranted. Rather, the evidence persuasively weighs against a compensable rating for limitation of flexion during this part of the appeal period. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Entitlement to an initial increased rating in excess of 10 percent for impairment of left thigh The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an initial increased rating in excess of 10 percent for impairment of the left thigh. The reasons follow. This disability is rated under DC 5253. The evidence shows that the Veteran's impairment of left thigh is manifested with pain and limitation of motion but does not result in limitation of abduction, where the motion is lost beyond 10 degrees to warrant a 20 percent rating. Instead, the Veteran's left hip flexion abduction was to 20 degrees in the August 2022 VA examination. The other findings of the August 2022 VA examination are discussed in detail above, which showed that the Veteran had no atrophy. The lack of atrophy is evidence against more than mild weakness. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a 20 percent rating for impairment of left thigh is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application. Lynch, 21 F.4th 776. 3. Entitlement to an initial compensable rating for limitation of extension of the left thigh The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an initial compensable rating for limitation of extension. The reasons follow. This disability is rated under DC 5251. The evidence shows that the Veteran's limitation of extension is manifested with pain and limitation of motion but does not result in limitation of extension to 5 degrees, to warrant a 10 percent rating. The Veteran's extension was shown to be no worse than 15 degrees in the August 2022 VA examination, and the other findings of the examination report are discussed above. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the evidence persuasively weighs against a limitation of extension to 5 degrees, which is the criteria needed for a 10 percent rating. The Veteran is already in receipt of a 10 percent rating under a different DC, which contemplates mild weakness. The Veteran has no atrophy in the left thigh, which is evidence against more than mild weakness. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in limitation of extension to 5 degrees or more. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a 10 percent rating for limitation of extension is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application. Lynch, 21 F.4th 776. 4. Entitlement to an increased rating in excess of 10 percent for lumbosacral strain with degenerative arthritis prior to August 4, 2022, and in excess of 40 percent thereafter Procedural History In the September 2017 rating decision currently on appeal, service connection for lumbosacral strain with degenerative arthritis was granted and a 10 percent rating was assigned effective March 12, 2015. After the Veteran contended that his disability had worsened, a May 2022 Board decision remanded the issue to afford the Veteran a new VA examination, which he received in August 2022. Based on the results of the examination, an October 2022 rating decision granted a 40 percent rating effective August 4, 2022. Rating Criteria The Veteran's lumbosacral strain with degenerative arthritis is rated under DC 5237-5242. The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; a 20 percent disability 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DCs 5237, 5242. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the musculoskeletal system and muscle injuries. 85 Fed. Reg. 76453 (November 30, 2020). The final rule went into effect on February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot pre-date the effective date of the amendments. The February 2021 revision did not change the rating criteria for DC 5243. However, it clarified for what conditions this DC applies. Namely, DC 5243 prior to February 2021 applies to intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a (2020). However, under the revised regulation, effective February 2021, DC 5243 applies to IVDS when there is disc herniation with compression and/or irritation of the adjacent nerve root. In this case, the Veteran has not been found to have IVDS, and thus these changes are inapplicable. 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. 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. Prior to August 4, 2022 The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an increased rating in excess of 10 percent for lumbosacral strain prior to August 4, 2022. The reasons follow. The evidence shows that prior to August 4, 2022, the Veteran's lumbosacral strain did not result in forward flexion of the thoracolumbar spine to 60 degrees or less; 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, to warrant a 20 percent rating. For example, the August 2017 VA examination shows that the Veteran was found to have a normal range of motion on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The Veteran reported flareups, which he characterized as increasing pain with prolonged walking, standing, or repetitive bending. The Veteran reported functional loss, and stated that due to pain, he has limitations with prolonged standing, walking, lifting, carrying heavy weights, and repetitive bending. Pain was noted on the examination, but it was not found to result in or cause functional loss. Pain was noted on forward flexion, extension, right lateral flexion, and left lateral flexion, but not on right lateral rotation or left lateral rotation. Testing regarding passive range of motion could not be performed or was not medically appropriate. There was no evidence of pain when the joint is used in non-weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, but the examiner stated that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination were not found to significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flareup, but the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain was found to significantly limit functional ability with flareups. This functional limitation resulted in forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The Veteran did not have guarding or muscle spasm of the back. The Veteran was found to have normal muscle strength, rated as 5/5, for bilateral hip flexion, knee extension, ankle plantar flexion. The Veteran was not found to have muscle atrophy. Deep tendon reflexes (DTRs) were found to be normal for the bilateral knees and ankles. The Veteran was found to have normal sensory results for the bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The Veteran had negative results of the bilateral straight leg test. No ankylosis of the spine was found. The examiner documented that the Veteran did not have IVDS of the thoracolumbar spine. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the evidence persuasively weighs against finding of 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, which is the criteria needed for a 20 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength and reflexes, and had a normal range of motion in all areas, and the Veteran has not specifically alleged symptomatology producing the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). On flareups, the Veteran's range of motion was found to be result in forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. Although the VA Adjudication Procedures Manual is not binding, the Board finds that it is instructive in this case for providing an understanding of the definition of normal muscle strength. According to the Manual, normal muscle strength is assigned a numerical grade of five and is indicated on the examination by muscle movement that can overcome normal resistance. See VA Adjudication Procedures Manual (M21-1MR), Part V.iii.1.E.1.b. The Merck Manual, a reference book for physicians and pharmacists grades full muscle strength as a five or as "N", and describes this grade as "Full range of motion against gravity and full resistance for the patient's size, age, and sex." See https://www.merckmanuals.com/professional/multimedia/table/grades-of-muscle-strength (Providing the Merck Manual entry on "Grades of Muscle Strength"). Accordingly, the fact that the Veteran had normal muscle strength weighs against a finding that he is unable to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Furthermore, the finding of muscle strength, in addition to the fact that symptoms indicative of atrophy have not been reported, weighs against a finding that the Veteran's back disability results in symptoms that would warrant an increased rating during this part of the appeal period. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in forward flexion of the thoracolumbar spine to 60 degrees or less; 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, which would be required for a finding that the Veteran was entitled to a 20 percent disability rating. The Board notes that pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Additionally, the spine criteria specifically contemplate pain. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a 20 percent rating for lumbosacral strain is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application. Lynch, 21 F.4th 776. From August 4, 2022 The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of an increased rating in excess of 40 percent for lumbosacral strain. The reasons follow. The evidence during this part of the appeal period shows that the Veteran's lumbosacral strain does not result in unfavorable ankylosis of the entire thoracolumbar spine, to warrant a 50 percent rating. For example, the August 2022 VA examination report documented that the Veteran did not have any ankylosis of the spine. Notably, the examiner documented that the Veteran's active range of motion for his spine was forward flexion to 30, extension to 15, and bilateral lateral flexion and bilateral lateral rotation to 15 degrees. The examiner noted that all range of motion exhibited pain. The Veteran's passive range of motion measurements were the same as active range of motion. However, these findings do not support that the Veteran's lumbosacral strain is manifested by unfavorable ankylosis of the entire thoracolumbar spine, they demonstrate that the Veteran is able to move his back with various types of motion. The examiner also noted pain on weight-bearing, nonweight-bearing, active motion, passive motion, on rest/nonmovement and that it caused functional loss with prolonged bending and lifting. Objective evidence of crepitus was found, but there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repeated use over time and procured evidence (including statements from the Veteran) did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination which limits functional ability with repeated use over time. The Veteran denied experiencing flareups of the thoracolumbar spine. The Veteran did not have localized tenderness, guarding or muscle spasm of the thoracolumbar spine. Muscle strength was found to be normal, rated 5/5, on bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, with no muscle atrophy. DTRs were found to be normal, rated as 2+, for the bilateral knees and ankles. The Veteran had normal results for sensation to light touch testing on the bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The Veteran was shown to have negative results for the bilateral straight leg raising test, and no radicular pain or any other signs or symptoms due to radiculopathy. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the evidence persuasively weighs against a finding of unfavorable ankylosis of the entire thoracolumbar spine, which is the criteria needed for a 50 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength and reflexes in his spine, and had forward flexion to 30 degrees, and the Veteran has not specifically alleged symptomatology producing the functional equivalent of ankylosis. Chavis, 34 Vet. App. 1. As discussed, although the M21-1MR is not binding, the previous discussion about the definition of normal muscle strength applies here as well. As such, the fact that the Veteran had normal muscle strength weighs against a finding that he is unable to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The finding of muscle strength, in addition to the fact that symptoms indicative of atrophy have not been reported, weighs against a finding that the Veteran's back disability is manifested by impairment that would warrant an increased rating. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in unfavorable ankylosis of the entire thoracolumbar spine, which would be required for a finding that the Veteran was entitled to a 50 percent disability rating. The Board notes that pain that does not result in additional functional loss does not warrant a higher rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this part of the appeal period. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a rating in excess of 40 percent for lumbosacral strain is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application. Lynch, 21 F.4th 776. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.