Citation Nr: 18160549
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 13-30 855
DATE:	December 27, 2018
ISSUE
Entitlement to a non-initial disability evaluation in excess of 10 percent prior to November 15, 2017, and in excess of 20 percent from November 15, 2017 for a lumbar spine disability.
ORDER
Entitlement to an evaluation in excess of 10 percent prior to December 22, 1997 for a lumbar spine disability is denied.
Entitlement to a disability evaluation of 40 percent, and not higher, from December 22, 1997 to September 12, 2016 for a lumbar spine disability is granted.
Entitlement to an evaluation in excess of 10 percent from September 12, 2016 to November 15, 2017 for a lumbar spine disability is denied.
Entitlement to an evaluation in excess of 20 percent from November 15, 2017 for a lumbar spine disability is denied.



	FINDINGS OF FACT
1. Prior to December 22, 1997, the Veteran’s lumbar spine disability was manifested by degenerative disc disease, forward flexion greater than 60 degrees but not greater than 85 degrees; but not by forward flexion greater than 30 degrees but not greater than 60 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, neurologic impairment; favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc disease (IVDS).
2. From December 22, 1997 to September 12, 2016, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees; but not by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS.
3. From September 12, 2016 to November 15, 2017, the Veteran’s lumbar spine disability was manifested by degenerative disc disease, forward flexion to 70 degrees; but not by forward flexion greater than 30 degrees but not greater than 60 degrees, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, neurologic impairment, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IVDS.
4. Since November 15, 2017, the Veteran’s lumbar spine disability was manifested by degenerative disc disease, forward flexion to 55 degrees, a combined range of motion of at least 145 degrees; but not by forward flexion of the thoracolumbar spine 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IVDS. 
5. In a September 2018 rating decision, the RO granted service connection for sciatic nerve disability of the right lower extremity, rated as 10 percent disabling from November 15, 2017; sciatic nerve disability of the left lower extremity, rated as 30 percent disabling from November 15, 2017; anterior crural nerve (femora) disability of the left lower extremity, rated as 20 percent disabling, effective November 15, 2017; and anterior crural nerve (femora) disability of the right lower extremity, rated as 10 percent disabling, effective November 15, 2017. The Veteran has not disagreed with the ratings or effective dates assigned to those disabilities.  No other neurological disabilities have been identified.   

CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 10 percent prior to December 22, 1997, for a lumbar spine disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002 & 2003); DCs 5235-5243 (2016). 
2. The criteria for a disability evaluation of 40 percent, and not higher, from December 22, 1997 to September 12, 2016 for a lumbar spine disability have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002 & 2003); DCs 5235-5243 (2016).
3. The criteria for a disability rating in excess of 10 percent from September 12, 2016 to November 15, 2017, for a lumbar spine disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002 & 2003); DCs 5235-5243 (2016). 
4. The criteria for a disability rating in excess of 20 percent after November 15, 2017 for a lumbar spine disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002 & 2003); DCs 5235-5243 (2016). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1987 to October 1989.
The case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 1993 rating decision by the Department of a Veterans Affairs (VA) Regional Office (RO). 
The Veteran filed a increased disability rating claim in excess of 10 percent for his lumbar spine disability in March 1993. The increased rating claim was denied in a May 1993 rating decision and the Veteran filed a timely notice of disagreement (NOD) in June 1993, followed by a timely appeal in September 1993. The Board remanded the claim in June 1997 for additional development, to include a VA examination. After completing the requested development, the RO continued to deny the claim in a June 2000 supplemental statement of the case (SSOC). However, it appears that the increased rating claim was not returned to the Board thereafter. As the 10 percent disability rating in effect was not the maximum benefit available for the claim on appeal and there is no indication in the record that the Veteran withdrew his claim in writing, the claim remained in appellate status. See 38 C.F.R. 20.204 (2015); See AB v. Brown, 6 Vet. App. 35 (1993). 
In a July 2016 decision, the Board remanded the claim for additional development, to include a new VA examination to assess the severity of the of his lumbar spine disability. In an October 2017 decision, the Board remanded the claim for a new VA examination because the September 2016 VA examination did not adequately address the Veteran’s neurological abnormalities, and a new examination was required to clarify whether the Veteran’s service-connected spine disorder manifested in lower extremity radiculopathy to a compensable degree. In a September 2018 SSOC, the RO increased the Veteran’s disability rating to 20 percent effective November 15, 2017. As the RO’s decision was a partial grant of the Veteran’s increased rating claim, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).
Given that the issue on appeal stems from an non-initial increased rating claim, the period on appeal dates back to the one year prior to the date of the non-initial increased rating claim. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Therefore, the Board has assessed and weighed the relevant evidence during the period on appeal.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.
While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).
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., quoting 38 C.F.R. § 4.40. 
Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). 
Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 
The rating criteria pertaining spine disabilities were amended twice during the pendency of the Veteran’s claim, first in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). 
Pursuant to governing legal precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. See VAOPGCPREC 7-03, 69 Fed. Reg. 25,179 (November 19, 2003), citing to Landgraf v. USI Film Products, 511 U.S. 244 (1994). In increased rating cases, such as this one, where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110 (g) (West 2002); 38 C.F.R. § 3.114 (2013). Moreover, as the Veteran’s claim was pending at the time of both regulatory amendments, he is entitled to the application of the criteria most favorable to his claim. See generally, Kuzma, supra; VAOPGCPREC 7-2003.
Under the criteria in effect prior to the September 2002 and September 2003 regulatory revisions (hereinafter “old” criteria), DC 5292, a rating of 10 percent was assigned for slight limitation of lumbar spine motion. A 20 percent rating was for assignment for moderate limitation of lumbar motion. A rating of 40 percent required severe limitation of motion. 
The Board notes that the old criteria did not define a normal range of motion for the lumbar spine. However, current regulations do establish normal ranges of motion for the thoracolumbar spine. See 38 C.F.R. § 4.71a, Plate V (2016). The supplementary information associated with the amended regulations state that the ranges of motion were based on medical guidelines in existence since 1984. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, the Board will apply the most recent September 2003 guidelines for ranges of motion of the spine to the old criteria.
Under former Diagnostic Code 5293, a 10 percent rating was warranted for mild IVDS. A 20 percent rating was assignable for moderate IVDS, recurring attacks, with intermittent relief. A 40 percent rating was warranted for severe IVDS, recurring attacks, with intermittent relief. A 60 percent evaluation required pronounced IVDS with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (as in effect prior to September 23, 2002).
Diagnostic Code 5295, as in effect prior to September 26, 2003, provided a 20 percent evaluation for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent evaluation was for application for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2003).
The revised General Rating Formula for Diseases and Injuries of the Spine provides that for DCs 5235 to 5243, a rating of 10 percent is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gain or spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Formula.
A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.
A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 
Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Formula, Note 1. 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. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. 
Unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. 
The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. 
An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.
1. Entitlement to an evaluation in excess of 10 percent prior to November 15, 2017
Summarizing the pertinent evidence with the above criteria in mind, an April 1993 VA examination showed that the Veteran had tenderness in the lower lumbar spine in the midline and was very tender in both costovertebral angles. The examiner noted that there were no spasms of the paraspinous muscles and the range of motion was full. Straight leg raises were noted as negative. The Veteran reported that he was unable to do a heel to toe walk because of the nerve damage.
The Veteran was provided with another VA examination in December 1997. The Veteran’s lumbar flexion was 70 degrees and with pain at 30 degrees flexion, and extension to 12 degrees with pain at 8 degrees. Rotation to the right and left was at 80 degrees, lateral bending to the right was at 8 degrees with pain at 8 degrees, lateral bending to the left was at 28 degrees with no pain. The Veteran’s gait showed no Trendelenburg (abnormal gait) but it favored the left. The Veteran had no spasms in his back and did not have tenderness across his L4 paraspinals. The examiner reported that the Veteran was not able to heel and toe stand and had negative straight leg raises. There was no instability, swelling or deformity in the Veteran’s back. The examiner’s assessment was that the Veteran had degenerative changes of the lower back and pain with range of motion. 
The Veteran was also provided with a VA examination in September 2016. The examiner noted a diagnosis for degenerative arthritis of the spine. The Veteran reported that he had been having daily pain in the lower back to a degree of 6 to 8 on a pain scale of 1 to 10. The Veteran also reported to having some numbness of both lower extremities (up to knees) a few times a month. The Veteran did no report having any flare-ups of the thoracolumbar spine. He reported having functional impairment as a result of his back disability, including more pain with faulty positions, bending activities, prolonged standing more than 20 to 30 minutes, walking more than half a mile, carrying and handling more than 10 pounds. The Veteran indicated that he was employed full-time at a restaurant working at the cash register and had been in the position for the last 15 years.
The examiner noted that the Veteran had forward flexion to 70 degrees, extension to 25 degrees, left lateral flexion to 25 degrees, right lateral flexion to 25 degrees, left lateral rotation to 25 degrees, and right lateral rotation to 25 degrees. Combined range of motion was 195 degrees. The examiner also noted that the Veteran had pain with weight bearing. The examiner noted minimal vague tenderness over the lumbosacral area and additional loss of function and range of motion due to pain after three repetitions. Specifically, after repetitive use, the Veteran had forward flexion to 65 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 25 degrees, left lateral rotation to 25 degrees, and right lateral rotation to 25 degrees. Combined range of motion was 180 degrees. The examiner noted pain on movement, but also found that there was no further limitation due to weakness, fatigability, or lack of endurance after repetitive use. There was a positive finding for radicular pain and moderate numbness was noted in the right and left lower extremities. The examiner did not specify the nerve roots involved in the radicular pain. No spasms and guarding were present, and there was no evidence of ankylosis. Intervertebral disc syndrome was noted, but there was no evidence of incapacitating episodes requiring physician prescribed bed rest. 
The Board also reviewed the lay statements in the record. The Veteran’s private medical records reflect that he had consistently complained of lower back pain. The Veteran reported that his lower back pain had caused him functional impairment. He stated that his pain was so severe in March 1993 that he could not work for a week, and a couple of days after returning from work he was fired because he was not able to stand properly. In August 1993, the Veteran stated that he was no longer able to perform the duties of a Restaurant Manager, which required him to stand and move around for hours at a time. During a January 2009 emergency department assessment note, the Veteran reported his pain level as 8 out of a scale of 1 to 10. 
Treatment records, dated January 2015, show complaints of sharp pain and cramping in the left lower extremity. The Veteran also experienced numbing of the left lower extremity, as well as the toes of both legs, which was attributed to muscle weakness. During the examination, the examiner noted that the Veteran had trouble with heel to toe walking due to pain. No bowel or bladder disturbance was reported. During a February 2015 EMG Consult, the examiner reported a normal examination of the left lower extremity without electrodiagnostic evidence of peripheral neuropathy, plexopathy or radiculopathy. The Veteran continued to report pain in the lumbar spine.
A. Consideration under the Old Criteria 
The April 1993 VA examination revealed none of the findings needed for a rating in excess of 10 percent under DCs 5292, 5293, or 5295. The Veteran did not have a moderate limitation of motion so as to warrant a rating in excess of 10 percent under DC 5292 as the examination reflected that the Veteran had a full range of motion. There were no indications of moderate IVDS on the reports from the April 1993 VA examination so as to warrant a rating in excess of 10 percent under DC 5293 inasmuch as testing showed no nerve involvement and no neurologic impairment was reported. Finally, a rating in excess of 10 percent was not warranted under DC 5295 because the examination found that there were no spasms of the paraspinous muscles, and there were no clinical findings during the time in question that there was loss of lateral spine motion, unilaterally, in the standing position. 
The December 1997 VA examination reflected that the Veteran’s lumbar flexion was 70 degrees and with pain at 30 degrees flexion; extension to 12 degrees with pain at 8 degrees; rotation to the right and left was at 80 degrees; lateral bending to the right was at 8 degrees with pain at 8 degrees; and lateral bending to the left was at 28 degrees with no pain. The Board notes that the examiner must have made a typographical error in listing the measurement for rotation to the right and left as 0 to 80 degrees, because the normal parameters ar 0 to 30. Therefore, the Board cannot determine what the Veteran’s actual limitation on rotation was during this time. Based on the results that are available for forward flexion, extension and lateral bending, the Veteran had a slight limitation of motion, which did not correspond with a disability rating of 20 percent. 
There were no indications of moderate IVDS so as to warrant a rating in excess of 10 percent under DC 5293 inasmuch as testing showed no nerve involvement and no neurologic impairment was reported. Finally, a rating in excess of 10 percent was not warranted under DC 5295 because the examination found that there were no spasms in his back. 
The findings of the subsequent VA examination, dated September 2016, did not show findings that would approximate the criteria for an increased rating. The Veteran had retained most of the normal range of motion on all reported examinations and would not warrant more than a rating for slight limitation of lumbar spine motion under the old DC 5292. There had also not been muscle spasm or loss of lateral spinal motion as would be required for a higher rating under the old DC 5295.
A rating under DC 5293 is not warranted based on the September 2016 VA examination because the Veteran was not found to have IVDS.
Given the above, the Veteran’s low back disability did warrant a disability evaluation in excess of 10 percent for the period prior to November 15, 2017 under the old criteria codified at 38 C.F.R. § 4.71a, DCs 5292, 5293, 5295 (2002). Moreover, as the medical evidence for the period in question did not indicate vertebral fracture or ankylosis, a higher evaluation is not warranted under 38 C.F.R. § 4.71a, DCs 5285, 5286, or 5289 (2002).
B. Consideration under the Revised Criteria
As previously noted, a rating of 20 percent under DC 5242 requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees. In this case, the Veteran’s April 1994 VA examination did not provide the measurements for range of motion testing and the examiner noted that range of motion was normal. In addition, both the December 1997 and the September 2016 VA examinations reflected forward flexion measured 0 to 70, and a combined range of motion of the thoracolumbar spine greater than 120 degrees. Therefore, the range of motion measurements do not warrant a 20 percent rating under DC 5242. 
Furthermore, while spasm or guarding severe enough to result in abnormal gait or spinal contour warrants a 20 percent rating, the preponderance of the medical evidence is against a finding that the Veteran’s low back disability is manifested by such symptoms. There is no evidence in the record that the Veteran suffered from spasms and guarding during the period prior to November 15, 2017. Thus, in light of the medical evidence of record as a whole, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s spams resulted in an abnormal gait or abnormal spinal contour as contemplated by a 20 percent rating under DC 5242. 
In evaluating the Veteran’s current level of disability for the period prior to November 15, 2017, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran had, at different times, complained of pain and limitation of motion, including bending, standing or walking for long periods, and carrying or lifting objects over 10 pounds, which the Veteran is competent to report. Jandreau, 492 F.3d 1372. The April 1993 VA examination is silent with regard to the functional impact of the Veteran’s back pain on his range of motion. The December 1997 VA examination shows that the Veteran’s lumbar flexion was 70 degrees and pain started at 30 degrees flexion. During the September 2016 VA examination, the examiner noted that there was additional functional loss due to pain and fatigue causing reduced range of motion following repeated use over time, but the Veteran’s range of motion for forward flexion remained over 60 degrees. Therefore, given that the Veteran only experienced functional impairment beyond the actual limitation of forward flexion at the time of the December 1997 VA examination, a 40 percent disability rating under DC 5242 for functional loss is warranted for the period from December 22, 1997 to September 12, 2016. 38 C.F.R. § 4.59; DeLuca, 8 Vet. App. 205; Mitchell; 25 Vet. App. 32. A disability rating in excess of 40 percent under DC 5242 is not warranted because there is no evidence in the record of unfavorable ankylosis of the entire thoracolumbar spine during this period.
No additional higher or alternative ratings under different diagnostic codes can be applied for the period prior to November 15, 2017. The April 1993 and December 1997 VA examinations did not indicate that the Veteran had IVDS. The September 2016 examiner noted a diagnosis of IVDS, but there was no evidence of incapacitating episodes requiring physician prescribed bed rest. The Board notes that the Veteran was incapacitated for a week in March 1993, but there is no medical evidence, VA or private, that the Veteran was prescribed bed rest by his physician during this time. See 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. Additionally, the Veteran has not alleged that he has at any point been prescribed bed rest for his low back disability. Id. In light of the lay and medical evidence of record, a rating in excess of 10 percent based on incapacitating episodes lasting at least one week but less than two weeks is not warranted. Id.
The Board also considers whether DC 5003 might serve as a basis for an increased rating in this case. The RO rated the Veteran’s low back disability under both DC 5242 and DC 5003 because of evidence of degenerative disc disease. The Veteran’s medical record reflects a diagnosis of degenerative arthritis of the lower lumbar spine. While the X-ray evidences degenerative arthritis, there was only one reported instance of incapacitation; therefore, the record does not indicate occasional incapacitating exacerbations prior to November 25, 2017, and thus, a rating in excess of 10 percent disabling is not warranted under DC 5003. See 38 C.F.R. § 4.71a; DC 5003. 
When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. In a September 2018 rating decision, the RO granted service connection for sciatic nerve disability of the right lower extremity, rated as 10 percent disabling from November 15, 2017; sciatic nerve disability of the left lower extremity, rated as 30 percent disabling from November 15, 2017; anterior crural nerve (femora) disability of the left lower extremity, rated as 20 percent disabling, effective November 15, 2017; and anterior crural nerve (femora) disability of the right lower extremity, rated as 10 percent disabling, effective November 15, 2017. The Veteran has not disagreed with the ratings or effective dates assigned to those disabilities; therefore, the Board is not addressing those issues in this decision. 
Therefore, based on the lay and medical evidence of record and in particular, evidence of functional loss due to pain, the Board finds that the Veteran’s low back disability more nearly approximated the level of severity contemplated by a disability rating of 40 percent under the revised criteria, and not higher, for degenerative arthritis of the lumbar spine during the period from December 22, 1997 to September 12, 2016. 38 C.F.R. §§ 4.7, 4.71a, DC 5243. 
Because the old criteria would not increase the Veteran’s disability rating in excess of 10 percent prior to November 15, 2017, whereas the revised criteria would increase the Veteran’s disability rating to 40 percent from December 22, 1997 to September 12, 2016, the application of the revised criteria is most favorable to the Veteran’s claim. 
All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 
Based on the foregoing, the Board finds that a disability rating of 40 percent, and not greater, from December 22, 1997 to September 12, 2016 for a lower back disability is warranted in this case. 
The preponderance of the evidence is against a rating in excess of 10 percent from the period prior to December 22, 1997, and for the period from September 12, 2016 to November 15, 2017 for a lumbar spine disability. As such, the benefit-of-the- doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim for a non-initial increased rating is denied for the aforementioned two periods.
2. Entitlement to an evaluation in excess of 20 percent from November 15, 2017
The Veteran contends that he is entitled to an initial rating in excess of 20 percent from November 15, 2017 for his low back disability.
The November 2017 VA examiner found that the Veteran had forward flexion to 55 degrees, extension to 20 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 20, for a combined range of motion of at least 145 degrees. The examiner provided the following additional diagnoses pertaining to the Veteran’s thoracolumbar spine disability, including: left moderate sciatica, right mild sciatica, left moderate femoral radiculopathy, right mild femoral radiculopathy, and intervertebral disc syndrome. The examiner noted pain during the range of motion examination and in weight bearing that caused functional loss. The Veteran reported that he could not lift heavy items, bend, climb stairs or turn and has pain all the time. The Veteran also reported that he had less movement than normal due to limitation of motion, disturbance of locomotion, and interference with sitting and standing.
The examiner noted objective evidence of localized tenderness in the form of tender mid and lower back with tight muscles. The examiner noted that there was no additional loss of function or range of motion following three repetitions. The Veteran reported that pain and fatigue significantly limit his functional ability with repeated use over a period of time. Specifically, the examiner noted the following range of motion results after repeated use over time: forward flexion to 45 degrees, extension to 10 degrees, left and right lateral flexion to 5 degrees, and left and right lateral rotation to 10, for a combined range of motion of at least 85 degrees. The Veteran also reported that pain and fatigue during flare ups significantly limit his functional ability. The Veteran’s range of motion results were the same during flare ups as they are after repeated use. The examiner reported that the Veteran had muscle spasms and guarding, but that neither resulted in an abnormal gait or an abnormal spinal contour. 
The examiner reported that the Veteran had radiculopathy involving the L2/L3/L4 bilateral femoral nerve roots and the L4/L5/S1/S2/S3 sciatic nerve roots. The examiner reported that the severity of the radiculopathy was mild in the right lower extremity and moderate in the left lower extremity. The Veteran reported mild constant pain in the right lower extremity, moderate constant pain in the left lower extremity, mild intermittent pain in the right lower extremity, severe intermittent pain in the left lower extremity, mild paresthesias and/or dysesthesias in the right lower extremity, severe paresthesias and/or dysesthesias in the left lower extremity, mild numbness in the right lower extremity, and moderate numbness in the left lower extremity. There was no evidence of other neurological abnormalities related to his thoracolumbar spine disability. Intervertebral disc syndrome without episodes requiring bed rest was noted. There was no evidence of ankylosis reported.
A.	Consideration under the Old Criteria
The November 2017 VA examination revealed none of the findings needed for a rating in excess of 20 percent under DCs 5292, 5293, or 5295. The Veteran did not have a severe limitation of motion so as to warrant a rating in excess of 20 percent under DC 5292 because the Veteran’s range of motion was considered moderate when compared to the standard for normal range of motion. Specifically, he had forward flexion of 55 degrees, extension of 20 degrees, lateral flexion of 15 degrees and lateral rotation of 20 degrees. There were no indications of severe IVDS, recurring attacks, with intermittent relief so as to warrant a rating in excess of 20 percent under DC 5293. Finally, a rating in excess of 20 percent was not warranted under DC 5295 because the examination found that there was no abnormal spinal contour due to muscle spasms and guarding. 
Given the above, the Veteran’s low back disability does not warrant an evaluation in excess of 20 percent for the period from November 15, 2017, under the old criteria codified at 38 C.F.R. § 4.71a, DCs 5292, 5293, 5295. Moreover, as the medical evidence for the period in question did not indicate vertebral fracture or ankylosis, a higher evaluation is not warranted under 38 C.F.R. § 4.71a, DCs 5285, 5286, or 5289.
B.	Consideration under the Revised Criteria
Based on a review of the record, the preponderance of the evidence is against a finding that the Veteran’s low back disability more nearly approximated the level of severity contemplated by a rating in excess of 20 percent for the period after November 15, 2017. The objective range of motion testing indicates that the Veteran had forward flexion of over 30 degrees, and none of the characteristics of unfavorable or favorable ankylosis were noted to be present on examination, nor has the Veteran complained of them in the lay statements of record. 38 C.F.R. § 4.71a, General Formula, Note 5. Therefore, an increased rating in excess of 20 percent from November 15, 2017 is not warranted. 38 C.F.R. §§ 4.7, 4.71a, DC 5243.
In evaluating the Veteran’s level of disability for the period from November 15, 2017, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Veteran had complained of low back pain and some limitations of motion, which he is competent to report. Jandreau, 492 F.3d 1372. Although the November 2017 VA examiner noted that there was additional functional loss due to pain and fatigue causing reduced range of motion following repeated use over time, the Veteran’s range of motion for forward flexion remained over 30 degrees. As such, the Board finds that the Veteran’s statements concerning further limitation due to factors such as pain and fatigue are outweighed by the objective findings of the VA examiner. 38 C.F.R. §§ 4.40, 4.45. Additionally, the Veteran’s complaints of pain on motion are fully contemplated by his current ratings. 38 C.F.R. § 4.59.
No additional higher or alternative ratings under different diagnostic codes can be applied for the period after November 15, 2017. Although the November VA examiner indicated that the Veteran has IVDS, there is no evidence that at any point after November 15, 2017, the Veteran’s low back disability was characterized by incapacitating episodes for VA purposes. See 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. The Veteran has not indicated that he had at any point been prescribed bed rest, and VA treatment records and the November 2017 examination report did not reflect any prescriptions of bed rest or periods of physician treatment. Id. In light of the lay and medical evidence of record, a rating in excess of 20 percent based on incapacitating episodes lasting at least four weeks but less than six weeks is not warranted. Id. Furthermore, no additional higher or alternative ratings under DC 5003 can be applied for the period after November 15, 2017, because the service-connected disability is already rated at 20 percent disabling under DC 5243, and 20 percent disabling is the highest rating available under DC 5003.
Again, when evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately. 38 C.F.R. § 4.71a, General Formula, Note 1. As stated above, the Veteran is already service connected for right leg sciatica nerve and femoral nerves of the bilateral lower extremities, and therefore those disabilities are already fully contemplated by its assigned rating. There is no medical or lay evidence of additional neurologic abnormalities during the period after November 15, 2017. All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a non-initial rating in excess of 20 percent from November 25, 2017, for the Veteran’s service-connected low back disability. As such, the benefit-of-the doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.
 
Michael Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. White, Associate Counsel  

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