Back to BVA DecisionsMIXEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 16-61 823
Case 22018519
KATHERINE KIEMLE BUCKLEY · 2022 · Case ID: 22018519
Summary
The veteran, who served from December 2009 to December 2012, appeals a reduction in his disability rating for lumbar strain with intervertebral disc disease (IVDS). The Board found that the August 2015 rating decision improperly reduced the veteran's evaluation from 20 percent to 10 percent, effective August 4, 2015. The Board noted that the reduction was improper because the evidence did not demonstrate actual improvement in the veteran's condition or his ability to function under ordinary conditions. The veteran's own reports and VA treatment records indicated persistent pain and functional limitations, and the August 2015 VA examination was deemed insufficient as it did not test for pain on repetitive use or during flare-ups. Consequently, the Board restored the 20 percent rating, effective August 4, 2015. The veteran also sought an increased rating beyond 20 percent for his lumbar spine disability. However, the Board found that the evidence did not support a higher evaluation, as the veteran's functional loss due to pain did not approximate the criteria for a 30-degree forward flexion or favorable ankylosis. The Board concluded that the evidence was persuasively against a rating higher than 20 percent, and therefore, the benefit of the doubt did not apply to this claim.
Full Decision Text
Citation Nr: 22018519 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-61 823 DATE: March 29, 2022 ORDER The reduction of a disability rating for lumbar strain with intervertebral disc disease from 20 to 10 percent was improper, and restoration of the 20 percent rating, effective August 4, 2015, is granted. Entitlement to an evaluation in excess of 20 percent for lumbar strain with IVDS is denied. FINDINGS OF FACT 1. The VA examination and other lay and medical evidence of record does not show actual improvement in the Veteran's lumbar strain with intervertebral disc disease disability or improvement in his ability to function under the ordinary conditions of life and work. 2. The Veteran's service-connected lumbar strain with intervertebral disc disease has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes. CONCLUSIONS OF LAW 1. The reduction of the 20 percent rating for lumbar strain and intervertebral disc disease was improper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105(e) & (i), 3.321, 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code (DC) 5243. 2. The criteria for an evaluation in excess of 20 percent for lumbar strain with intervertebral disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to December 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decisions from a Regional Office (RO) for the Department of Veterans Affairs (VA) that, in pertinent part, continued a 20 percent rating for the lumbar spine disability prior to August 4, 2015, and reduced the disability rating from 20 to 10 percent, effective August 4, 2015. The Veteran was scheduled to testify at a hearing before the Board on September 2019. An August 2019 letter notified the Veteran of the date, time, and location of the hearing. However, he did not appear for this hearing and has not provided a reason for his failure to appear or requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38C.F.R. §20.704 (d) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). The Board previously considered this appeal in July 2021 and remanded the issue for further development including scheduling a VA examination. Subsequently, an August 2021 rating decision increased the Veteran's disability rating for lumbar strain with IVDS from 10 percent to 20 percent, effective August 31, 2021. A supplemental statement of the case (SSOC) was issued in October 2021. The case returned to the Board for further appellate review. The Board recognizes that the August 2015 rating decision also granted service connection for right lower extremity radiculopathy at 10 percent disabling and left lower extremity radiculopathy at 10 percent disabling was granted, effective April 13, 2015. The Veteran did not appeal the radiculopathy ratings at the time of the award, and they were not addressed in the July 2021 Board decision denying the increased rating claim. As such, the Veteran was on notice that the radiculopathy ratings were not part of the appeal and he would have no expectation that such ratings would be on appeal. Accordingly, the Board declines to take jurisdiction of the radiculopathy ratings herein. C.f., Chavis v. McDonough, 34 Vet. App. 1 (2021) (finding that in some circumstances radiculopathy ratings are part of the underlying increased rating spine claim even if a separate notice of disagreement was not filed, but the Court specifically declined holding that in "all" cases neurological the radiculopathy ratings at the time of the award, and they were not addressed in the July 2021 Board decision denying the increased rating claim. As such, the Veteran was on notice that the radiculopathy ratings were not part of the appeal and he would have no expectation that such ratings would be on appeal. Accordingly, the Board declines to take jurisdiction of the radiculopathy ratings herein. C.f., Chavis v. McDonough, 34 Vet. App. 1 (2021) (finding that in some circumstances radiculopathy ratings are part of the underlying increased rating spine claim even if a separate notice of disagreement was not filed, but the Court specifically declined holding that in "all" cases neurological ratings are part and parcel of increased rating spine claims). 1. Whether the reduction to 10 percent for lumbar strain with intervertebral disc disease from August 4, 2015, was proper. The Veteran contends that, during the period between August 4, 2015 and August 31, 2021, the symptoms of his service-connected lumbar strain with IVDS disability have not actually improved. As such, he asserts that the August 2015 rating decision improperly reduced his evaluation from 20 percent to 10 percent, and his 20 percent disability rating should be restored. For the reasons set forth below, the Board agrees and finds that restoration of the Veteran's 20 percent disability rating for his service-connected lumbar strain with IVDS disability is warranted. By way of history, a September 2012 rating decision awarded the Veteran service connection for his lumbar strain with intervertebral disc disease and assigned a 20 percent rating, effective December 8, 2012, under Diagnostic Code 5243. The Veteran filed an increased rating claim in April 2015. The Veteran was afforded a VA examination and based upon the results of this examination the RO issued an August 2015 rating decision which, in part, decreased the lumbar strain with IVDS from 20 percent to 10 percent effective August 4, 2015, granted service connection for radiculopathy of the left lower extremity and right lower extremity and assigned each leg a 10 percent evaluation effective April 13, 2015. In September 2015, the Veteran filed a timely notice of disagreement and this appeal followed. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). However, VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). Additionally, in certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. In this case, no reduction notification procedures were undertaken, but none were required as the overall compensation paid to the Veteran was not reduced in the August 2015 rating decision. See 38 C.F.R. § 3.105(e); See VAOPGCPREC 71-91 finding that 38 C.F.R. § 3.105(e) does not apply when the reduction does not involve a decrease in the overall amount of compensation payable to the Veteran, as is the present situation; see also Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of §3.105(e) do not apply when there is no change in the overall disability rating). Additionally, the 20 percent evaluation had been in effect since 2012, less than 5 years before the reduction took effect. As such, the provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply. Prior to reducing a Veteran's disability rating, however, VA is required to comply with VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of §3.105(e) do not apply when there is no change in the overall disability rating). Additionally, the 20 percent evaluation had been in effect since 2012, less than 5 years before the reduction took effect. As such, the provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply. Prior to reducing a Veteran's disability rating, however, VA is required to comply with VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413 (1993). These provisions impose a requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). A veteran's disability evaluation will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288 (1999). The sole issue for adjudication by the Board involves whether the evidence of record demonstrates actual improvement in the Veteran's lumbar strain with IVDS disability and in his ability to function under the ordinary conditions of life and work, at the time of the reduction. See Brown, 5 Vet. App. at 418-19. After careful consideration of the evidence of record, the Board finds that the evidence of record does not persuasively demonstrate actual improvement in the Veteran's lumbar strain with IVDS disability and in the Veteran's ability to function under the ordinary conditions of life and work, and accordingly, the restoration of the 20 percent evaluation for his service-connected lumbar strain with IVDS is warranted in this case. The Board agrees that the competent medical and lay evidence of record does not show an actual improvement in the Veteran's lumbar strain symptomatology or his ability to function under the ordinary conditions of life and work. Prior to the Veteran's rating reduction, he reported lumbar spine pain, decreased ROM, strength and mobility, problems with lifting and carrying, difficulty reaching. See April 2012 VA Back Examination. His range of motion testing showed forward flexion to 50 degrees, extension to 20 degrees, and left lateral flexion, right lateral flexion, left rotation and right rotation to 20 degrees, each. Id. During the August 2015 VA Examination, upon which the reduction was based, the Veteran again reported that, since the last C&P examination, he has had an increase of back pain; specifically, that his back pain is sharp with constant painful radiation to his buttocks and posterior thighs. He also reported flare ups manifested by prolonged standing, walking, sitting, squatting increase his back pain. See August 2015 VA Back Examination. While range of motion testing improved from the prior examination, the Veteran was not tested immediately after repetitive user over time nor was the examination conducted during a flare-up. Id. The examiner further noted that work restrictions for this condition would include limitations of heavy or unassisted lifting; repetitive rotation of the back; carrying, pushing, or pulling heavy objects; vibrational stresses; overhead work; and prolonged sitting. Prolonged standing may aggravate the pain, and that rest periods are an important part of treatment. VA treatment records from June 2015 and August 2015 show that the Veteran reported sharp pain of the low back that comes and goes, worsening. He further described trouble sleeping due to pain. He also requested a back support or brace. Further, in the August 2021 VA Back Examination, the Veteran reported that low back pain has been the same since the last exam, that prolonged sitting causes an increase in pain resulting in frequent position change, and that he manages pain with conservative measures. He further reported constant 6/10 aching pain with pulling heavy objects; vibrational stresses; overhead work; and prolonged sitting. Prolonged standing may aggravate the pain, and that rest periods are an important part of treatment. VA treatment records from June 2015 and August 2015 show that the Veteran reported sharp pain of the low back that comes and goes, worsening. He further described trouble sleeping due to pain. He also requested a back support or brace. Further, in the August 2021 VA Back Examination, the Veteran reported that low back pain has been the same since the last exam, that prolonged sitting causes an increase in pain resulting in frequent position change, and that he manages pain with conservative measures. He further reported constant 6/10 aching pain with intermittent 9/10 aching pain. The Veteran also reported that prolonged sitting, standing, walking, heavy lifting, bending at the low back, twisting, and turning causes an increase in back pain. The Veteran is competent to provide testimony regarding the symptom he experiences and his functional loss, and the Board finds his reports to be credible. Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, the Board finds that the evidence of record does not show that the Veteran's back disability exhibited actual improvement of function at the August 2015 VA examination. As there was insufficient evidence to show an actual change in his disability or an actual improvement of function under the ordinary conditions of life and work, the Board restores the 20 percent rating for lumbar strain with IVDS, effective August 4, 2015. 2. Entitlement to an evaluation in excess of 20 percent for lumbar strain with IVDS. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Veteran seeks a higher evaluation for his service-connected lumbar strain with IVDS. After review, of the evidence, both lay and medical, the Board finds that the Veteran's service-connected lumbar strain disability approximates the 20 percent disability rating throughout the entire appeal period. The Veteran's low back disability is currently rated as lumbar strain with intervertebral disc syndrome under Diagnostic Code 5243. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses 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 Diagnostic Code 5243. However, it clarified for what conditions this Diagnostic Code applies. Namely, Diagnostic Code 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, Diagnostic Code 5243 applies to IVDS when there is disc herniation with compression and/or irritation of the adjacent nerve root. Thus, prior to February 7, 2021, the Veteran's lumbar spine affords consideration under both Diagnostic Codes 5242 and 5243, but under the revised regulation effective February 2021, the Veteran's disability must be evaluated under Diagnostic Code 5243 only. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent rating 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; 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 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; 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 at 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. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Alternatively, where, as here, there is intervertebral disc syndrome, the spine may be evaluated under Diagnostic Code 5243 based on incapacitating episodes. Under Diagnostic Code 5243, a 20 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. A 60 percent disability rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. During the period on appeal, the Veteran has been afforded VA examinations for his thoracolumbar spine in August 2015 and in August 2021. In August 2015, the Veteran reported that since the last C&P examination he has had an increase of back pain, that his back pain is sharp with constant painful radiation to his buttocks and posterior thighs. He also reported flare ups as prolonged standing, walking, sitting, squatting increase his back pain. See August 2015 VA Back Examination. On physical examination, his range of motion testing showed forward flexion to 70 degrees, extension to 15 degrees, and left lateral flexion, right lateral flexion, left rotation and right rotation to 20 degrees, each. The Veteran was not tested immediately after repetitive use over time nor was the examination conducted during a flare-up. The examiner further noted that work restrictions for this condition would include limitations of heavy or unassisted lifting; repetitive rotation of the back; carrying, pushing, or pulling heavy objects; vibrational stresses; overhead work; and prolonged sitting. Because the examiner did not conduct passive range of motion testing, nor did the examiner test pain on non-weightbearing and was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran's functional ability during periods of flare-up or on repetitive use without providing a reason for why an estimate could not be provided based on information procured from the Veteran or other medical evidence of record, the Board found the August 2015 examination and opinion to be insufficient to fairly adjudicate the Veteran's claim. In a July 2021 decision, the Board remanded the issue for a new examination and opinion. VA treatment records from June 2015 and August 2015 show that the Veteran reported low back sharp pain that comes and goes, worsening, and that he is having trouble sleeping due to pain. He also requested a back support or brace. In the August 2021 VA Back Examination and in a September 2021 addendum opinion, the periods of flare-up or on repetitive use without providing a reason for why an estimate could not be provided based on information procured from the Veteran or other medical evidence of record, the Board found the August 2015 examination and opinion to be insufficient to fairly adjudicate the Veteran's claim. In a July 2021 decision, the Board remanded the issue for a new examination and opinion. VA treatment records from June 2015 and August 2015 show that the Veteran reported low back sharp pain that comes and goes, worsening, and that he is having trouble sleeping due to pain. He also requested a back support or brace. In the August 2021 VA Back Examination and in a September 2021 addendum opinion, the VA examiner reported the current severity of the Veteran's lumbar spine disability. Specifically, the Veteran reported that low back pain has been the same since the last examination, that prolonged sitting causes an increase in pain resulting in frequent position change, and that he manages pain with conservative measures. He further reported constant 6/10 aching pain with intermittent 9/10 aching pain. Veteran reported that prolonged sitting, standing, walking, heavy lifting, bending at the low back, twisting, and turning causes an increase in back pain. A review of range of motion testing showed forward flexion to 55 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Pain was noted on examination causing functional loss and all ROM exhibited pain. Passive ROM testing was not performed due to risk of injury. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of range of motion after three repetitions. The examiner noted estimate range of motion in degrees immediately after repeated use over time as follows: forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The examiner noted estimate range of motion in degrees during flare ups as follows: forward flexion to 45 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. There was evidence of pain in weight-bearing and active motion that causes functional loss. The examiner noted guarding not resulting in abnormal gait. No muscle spasm of the thoracolumbar spine. The examiner found that the Veteran does not have ankylosis of the spine or use assistive devices as a normal mode of locomotion. However, the examiner found that the Veteran had IVDS. The Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board finds the Veteran's disability picture shows evidence of functional loss that does not warrant an increased evaluation in excess of 20 percent. The evidence of record shows that the Veteran is documented as having reduced range of motion; however, he is able to perform repetitive-use testing with no additional loss of range of motion. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the evidence is persuasively against a finding of the functional equivalent of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. With respect to the IVDS criteria, the evidence does not indicate or establish that the Veteran had been prescribed bed rest by a physician for any period of acute signs and symptoms. Accordingly, the IVDS Formula is not for application. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. A 20 percent rating contemplates functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Thus, the Board finds that the evidence of record is persuasively against a rating in excess of 20 percent for a lumbar spine disability. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero The Board's decision in this case is binding only with respect to the limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Thus, the Board finds that the evidence of record is persuasively against a rating in excess of 20 percent for a lumbar spine disability. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero 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.