LUMBAR SPINE DISABILITY

LESLEY A. REIN · 2023 · Case ID: 23000772

MIXED

Summary

The veteran, who served in the Air Force from April 2007 to April 2013, appeals the denial of higher disability ratings for his lumbar spine disability. The Board of Veterans' Appeals (Board) reviewed the veteran's claim for increased ratings for thoracolumbar strain for two periods: prior to April 29, 2016, and from April 29, 2016, onwards. The veteran was initially granted service connection for a lumbar spine disability with a 10 percent rating, which was later increased to 20 percent effective April 29, 2016. The veteran sought ratings higher than 10 percent for the initial period and higher than 20 percent for the subsequent period. The Board reviewed VA examinations from February 2014, April 2016, and May 2019, along with treatment records. The examinations indicated limitations in range of motion and reported pain, but did not meet the criteria for higher ratings under the General Rating Formula for Diseases and Injuries of the Spine (DC 5242) or the Incapacitating Episodes Formula (DC 5243), as the veteran's symptoms did not consistently demonstrate the severe limitations or incapacitating episodes required for higher evaluations. The Board found the evidence did not support a finding of ankylosis or functional loss beyond what was already contemplated by the assigned ratings. The Board denied the claim for increased ratings for all periods. However, the Board remanded the issue of urinary incontinence, as the veteran reported this symptom in later treatment records, and a VA examination was needed to determine its etiology and relationship to the service-connected lumbar spine disability.

Rationale

Prior to April 29, 2016, forward flexion was 75 degrees, combined range of motion was 200 degrees, with no abnormal gait, spinal contour, or ankylosis.; From April 29, 2016, onwards, forward flexion was 50 degrees, combined range of motion was 150 degrees, with pain on weight bearing and tenderness, but no objective muscle spasm or guarding resulting in abnormal gait or spinal contour.; Symptoms did not approximate ankylosis or meet criteria for higher ratings under 38 C.F.R. §§ 4.40, 4.45, 4.59, or DeLuca.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5235

Docket No.

18-14 326

Full Decision Text

Citation Nr: 23000772
Decision Date: 01/05/23 Archive Date: 01/05/23

DOCKET NO. 18-14 326
DATE: January 5, 2023

ORDER

Entitlement to a disability rating in excess of 10 percent for thoracolumbar strain for the period prior to April 29, 2016, is denied.

Entitlement to a disability rating in excess of 20 percent for thoracolumbar strain (hereafter lumbar spine disability) for the period from April 29, 2016, onwards, is denied.

REMANDED

Entitlement to a separate evaluation for urinary incontinence is remanded.

FINDINGS OF FACT

1. Prior to April 29, 2016, the Veteran's lumbar spine disability manifested by forward flexion to 65 degrees at worst, and a combined range of motion of 125 degrees at worst; but not by abnormal gait or spinal contour, forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS).

2. For the period following April 29, 2016, and onward, the Veteran's lumbar spine disability manifested by forward flexion to 36 degrees at worst; but not by forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

CONCLUSIONS OF LAW

1. For the period prior to April 29, 2016, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242.

2. For the period from April 29, 2016, and onward, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Air Force from April 2007 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision issued by a Department of Veterans Affairs Regional Office (RO).

In a March 2014 Rating Decision, service connection was granted for a lumbar spine disability and a 10 percent disability rating was assigned. In April 2014, the Veteran submitted a Notice of Disagreement appealing this initial rating assignment. A February 2018 rating decision granted a higher, 20 percent rating for the Veteran's lumbar spine disability, effective April 29, 2016. As higher ratings are available before and after April 29, 2016, the claim remained on appeal before the Board.

In April 2019, the Board determined that an addendum opinion was required and remanded this matter for additional development.

This matter now returns to the Board. As the actions specified in the April 2019 remand have been substantially completed, this matter is properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Board notes that in February 2018, the RO issued a rating decision which granted service connection for radiculopathy of the right and left lower extremities. The RO assigned an initial 30 percent disability rating to both extremities, effective April 29, 2016. The Veteran subsequently appealed both initial disability ratings and the effective date assigned in a June 2018 Notice of Disagreement.

These matters were adjudicated by the Board in a July 2019 decision in which the Board determined that the Veteran was entitled to an initial 10 percent disability rating for radiculopathy of the right and left lower extremities from January 9, 2014, to April 28, 2016, and a 30 percent disability rating for radiculopathy of the right and left lower extremities from April 29, 2016, onwards. As
lower extremities. The RO assigned an initial 30 percent disability rating to both extremities, effective April 29, 2016. The Veteran subsequently appealed both initial disability ratings and the effective date assigned in a June 2018 Notice of Disagreement.

These matters were adjudicated by the Board in a July 2019 decision in which the Board determined that the Veteran was entitled to an initial 10 percent disability rating for radiculopathy of the right and left lower extremities from January 9, 2014, to April 28, 2016, and a 30 percent disability rating for radiculopathy of the right and left lower extremities from April 29, 2016, onwards. As the assigned rating and effective date issues have already been adjudicated by the Board, the Board will not discuss the Veteran's radiculopathy ratings and effective dates in this decision. Chavis v. McDonough, 34 Vet. App. 1, 15-18 (2021),

Duties to Notify and Assist.

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

Increased Ratings: Generally.

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 disabilities 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 be practicably 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.

The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged, as is detailed below. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Increased Ratings: The Spine

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca, 8 Vet. App. at 206.

All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38C.F.R. §4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id.

As an initial matter, the Board notes that effective February 7, 2021 VA amended the schedule of ratings for musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7,
5 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38C.F.R. §4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id.

As an initial matter, the Board notes that effective February 7, 2021 VA amended the schedule of ratings for musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, this amendment did not change the rating criteria contained in the General Formula. Id. While the amendment did change the language contained in Diagnostic Code 5242 and 5243, these changes simply provided clarification that Diagnostic Code 5242 should be utilized for disc disease other than intervertebral disc syndrome and that Diagnostic Code 5243, governing intervertebral disc syndrome specifically, should be used only when there is disc herniation with compression and / or irritation of the adjacent nerve root. Id. at 76,462. As the amendment did not substantively change the rating criteria utilized in rating the Veteran's spine disability, the Board will not address the amendment further herein.

Under the General Formula, a 10 percent rating is assigned where there is 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 contour; or vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent rating is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

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. See General Rating Formula for Diseases and Injuries of the Spine, Note 2.

Additionally, 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.

Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (Combined Ratings Table).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings will apply:

A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.

A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.

A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to
Combined Ratings Table).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings will apply:

A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.

A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.

A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 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. 38 C.F.R. § 4.71a.

On April 16, 2021, the Court of Appeals for Veterans Claims (the Court) held that ankylosis can be met with evidence of the functional equivalent of ankylosis during a flare. Chavis v. McDonough, 34 Vet. App. 1,2 (2021). The Court also reiterated that "VA considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness." Id. at 9. The Appellant argued that his spine disability results in the functional equivalent of ankylosis during flare-ups that render him unable to move. Id. at 12. The Court vacated the prior Board denial of an increased rating, remanding the claim for the Board to consider whether the Appellant's symptoms during flare-ups result in the functional equivalent of ankylosis.

Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37.

1. Entitlement to a disability rating in excess of 10 percent for thoracolumbar strain for the period prior to April 29, 2016

2. Entitlement to a disability rating in excess of 20 percent for thoracolumbar strain for the period from April 29, 2016, onwards,

During the relevant periods on appeal, the Veteran's lumbar spine disability is rated as 10 percent disabling prior to April 29, 2016, and 20 percent disabling April 29, 2016, and onwards under 38 C.F.R. § 4.71a, DC 5242. The Veteran appeals for a higher rating for all periods on appeal.

Prior to April 29, 2016.

Prior to April 29, 2016, the Veteran generally reported pain and limitation of motion in his lumbar spine, as well as flare-ups of his condition.

In January 2014, the Veteran submitted a statement in support of his initial
April 29, 2016, onwards,

Prior to April 29, 2016.

Prior to April 29, 2016, the Veteran generally reported pain and limitation of motion in his lumbar spine, as well as flare-ups of his condition.

In January 2014, the Veteran submitted a statement in support of his initial claim to service connect his back condition, reporting severe back pain. See January 2014 VA Form 4138: Statement in Support of Claim.

The Veteran was afforded a VA examination in February 2014. During the exam, the Veteran reported pain, stiffness, a limited range of motion, and difficulty lifting heavy objects. On examination, the Veteran was capable of a combined range of motion of 200 degrees. The Veteran demonstrated forward flexion to 75 degrees, backwards extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees. The Veteran reported that during flare-ups of his condition, his range of motion in all directions was decreased by 10 degrees. The Veteran was able to perform repetitive use testing without a reduction in his range of motion, and the VA examiner did not note evidence of localized tenderness, muscle spasm, or guarding resulting in an abnormal gait or spinal contour. The Veteran's muscle strength was noted to be normal and no muscle atrophy or ankylosis was observed. The examiner indicated that the Veteran did not have IVDS or other neurological abnormalities.

There is no evidence that the above examiner was either not competent or credible. Further, the examiner's assessment was based both on the Veteran's reports of his symptoms as well as the examiner's own measurements and observations. As such, the Board finds that the examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008)

A review of the Veteran's treatment records prior to April 29, 2016 reflects ongoing treatment for low back pain with consistent reports of back pain. The Board notes that on April 21, 2016, the Veteran reported to the Northeast Georgia Medical Center Emergency Department with symptoms of severe back pain. See Northeast Georgia Medical Records. During this visit, the Veteran stated that his back pain was so severe that he was unable to walk and could barely bend over. While this medical report would suggest that the Veteran experienced spinal ankylosis during a flare-up of this condition, subsequent medical records and examinations below demonstrate that the Veteran is capable of a spinal range of motion during a flare-up and does not experience ankylosis, indicating that this emergency room visit was an isolated incident.

Based on the foregoing, the criteria for a disability rating in excess of 10 percent were not met prior to April 29, 2021. At worst, the Veteran's lumbar spine disability manifested by forward flexion to 65 degrees at worst, and a combined range of motion of 125 degrees at worst; but not by abnormal gait or spinal contour, forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). Therefore, a 10 percent rating is derived. 38 C.F.R. § 4.71a, General Formula.

For the period on appeal prior to April 29, 2016, no additional higher or alternative ratings under different Diagnostic Codes can be applied. The Board has considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. In this regard, the Board notes that the Veteran does not have an IVDS diagnosis. Therefore, a higher rating under Diagnostic Code 5243 for IVDS is not warranted.

The Board has also considered whether the Veteran's symptoms approximate ankylosis in light of Chavis v. McDonough for all periods on appeal. In Chavis, the Court noted the Dorland's definition of ankylosis as "complete limitation of motion." See Dorland's Illustrated Medical Dictionary at 94 (33d ed. 2019). The Board has reviewed the objective medical evidence of record and does not find that the Veteran's symptoms have approximated ankylosis at any time.

The Board further finds that there is no basis for the assignment of a higher rating for all periods on appeal based
not have an IVDS diagnosis. Therefore, a higher rating under Diagnostic Code 5243 for IVDS is not warranted.

The Board further finds that there is no basis for the assignment of a higher rating for all periods on appeal based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-07. Although the Board acknowledges that the Veteran has reported pain, there is nothing in the record that suggests the pain resulted in functional loss beyond what is already contemplated by the ratings assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. Accordingly, the Board finds that the overall level of disability demonstrated by the Veteran throughout all periods on appeal is not commensurate with assigning a higher schedular rating under the DeLuca criteria.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. See 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran's left and right lower extremity radiculopathy has already been granted, and this decision has been appealed and adjudicated by the Board. See July 2019 Rating Decision. No other neurologic abnormalities have been noted as being associated with the Veteran's back disability during the period on appeal prior to April 29, 2016.

From April 29, 2016.

From April 29, 2016, onwards, the Veteran is currently in receipt of a 20 percent rating for his lumbar spine disability. The Veteran appeals for a higher rating for this period.

Pursuant to the Veteran's Notice of Disagreement, the Veteran was afforded a VA examination in April 2016. During this exam, the Veteran stated that his back pain was constant and sometimes made it difficult for him to walk. On examination, the Veteran was capable of a combined range of motion of 150 degrees. The Veteran demonstrated forward flexion to 50 degrees, backwards extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The Veteran did not demonstrate a loss in range of motion after repeated use testing. The Veteran reported that during flare-ups of his condition, his range of motion in all directions was decreased by 10 degrees, and he experienced functional loss due to pain, weakness, fatigability, or incoordination. The examiner noted that on examination, the Veteran experienced pain on weight bearing, pain on rest, pain, and tenderness on palpation of the joint. The examiner did not find objective evidence of muscle spasm or guarding but did note that localized tenderness resulted in abnormal gait and spinal contour. The Veteran's muscle strength was noted to be normal and no muscle atrophy or ankylosis was observed. The examiner indicated that the Veteran did not have IVDS.

Because the Veteran reported a range of motion that was greater than 30 degrees but not greater than 60 degrees, the Veteran's rating for a lumbar spine disability was increased from 10 to 20 percent. This increase was granted via a February 2018 Rating Decision, with the effective date of the award set as April 29, 2016, the date that the Veteran first showed documented symptoms that would warrant entitlement to an increased rating. 38 U.S.C. § 5110; 38. C.F.R. § 3.4(o) (the effective date for an increased disability rating will be the date of receipt of the claim or the date as of which it is factually ascertainable based on the evidence of record that an increase in disability had occurred, whichever is later). As higher ratings are available before and after April 29, 2016, the claim remained on appeal before the Board.

Pursuant to the Board's April 2019 Remand, the Veteran was afforded a third VA examination in May 2019. During this examination, the Veteran reported that he experienced constant back pain, trouble walking, limited range of motion, and difficulty with bending, prolonged standing and walking, and climbing stairs. On examination, the Veteran was capable of a combined range of motion of 155 degrees, with forward flexion to 60 degrees, backwards extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. The Veteran exhibited pain on active and passive range of motion, and in non-weight bearing conditions. Upon a flare-up, the Veteran reported that his forward flexion was limited to 45 degrees, backwards extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The Veteran's muscle strength was noted to be normal and no muscle atrophy or ankylosis was observed. The examiner noted that the Veteran did not have IVDS.

The Board notes that on examination, the Veteran demonstrated functional loss regardless of repetitive use, as well as functional loss after repetitions. The Veteran also reported pain, weakness, and fatiguability during flare-ups of his condition. The Veteran did not report that any loss of use resulted in immobility or the functional equivalent of ankylosis. See May 2019 VA Examination.

There is no evidence that the above examiners were either not competent or credible. Further, the examiners' assessments were based both on the Veteran's reports of his symptoms as well as the examiner's own measurements and observations. As such, the Board finds that the examination reports are entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Additionally, the April 2016 and May 2019 VA examinations in totality have complied with the provisions set forth by Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158 (2016) (joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing); Sharp v. Shulkin, 29 Vet. App. 26 (2017) (a VA exam is inadequate if the examiner does not consider the impact of flare-ups and pain). Although the April 2016 VA examination was not entirely compliant in this regard, the May 2019 VA examination supplied this information and demonstrates that the severity level of the Veteran's condition is similar and consistent throughout the period on appeal. Thus, it cured any aspects of the duty to assist and provides sufficient evidence for deciding this appeal

A review of the Veteran's treatment records following April 29, 2016 reflect that the Veteran continued to experience worsening lower back pain with spasms and tenderness. In an October 2019 VA treatment record, the Veteran was capable of 45 percent of his forward flexion, or forward flexion to 36 degrees, and used a cane for regular ambulation. See October 07, 2019 VA Treatment Record.

Therefore, based on the foregoing, the evidence is against a finding that an increased rating in excess of 20 percent is warranted at any time from November 7, 2021, onwards. During the period on appeal, the evidence clearly reflects that the Veteran was capable of forward flexion in excess of the 30 degrees or less as would satisfy the criteria for a higher rating of 40 percent. Further, neither of the VA examinations, nor any of the Veteran's treatment records reflect ankylosis of any kind as would satisfy the criteria for a higher rating of 40 percent. As such, an increased rating for the Veteran's back disability is not warranted from April 29, 2016, onwards. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5242.

For the period on appeal from April 29, 2016, onwards, no additional higher or alternative ratings under different Diagnostic Codes can be applied. The Board has considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. In this regard, the Board notes that during
examinations, nor any of the Veteran's treatment records reflect ankylosis of any kind as would satisfy the criteria for a higher rating of 40 percent. As such, an increased rating for the Veteran's back disability is not warranted from April 29, 2016, onwards. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5242.

For the period on appeal from April 29, 2016, onwards, no additional higher or alternative ratings under different Diagnostic Codes can be applied. The Board has considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. In this regard, the Board notes that during this period on appeal, the Veteran's treatment records do not reflect an IVDS diagnosis. Therefore, a higher rating under Diagnostic Code 5243 for IVDS is not warranted.

The Board further finds that there is no basis for the assignment of a higher rating for all periods on appeal based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-07. Although the Board acknowledges that the Veteran has reported pain and weakness, there is nothing in the record that suggests the pain resulted in functional loss beyond what is already contemplated by the ratings assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. Accordingly, the Board finds that the overall level of disability demonstrated by the Veteran throughout all periods on appeal is not commensurate with assigning a higher schedular rating under the DeLuca criteria.

To the extent that the Veteran contends that his back disability was more severe at any time during the appeal period than reflected by the current assigned ratings, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person including painful motion. See Jandreau, 492 F.3d at 1377. However, he is not competent to state that his lumbar spine disability is of a severity sufficient to warrant a higher rating under VA's criteria for rating back disabilities because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana, 24 Vet. App. at 435.

In summary, to the extent any higher level of compensation is sought, the Board finds that the weight of the evidence is against the Veteran's claim for higher ratings for all periods on appeal. As such, the evidence is against a disability rating in excess of 10 percent prior to April 29, 2016, and in excess of 20 percent thereafter for the Veteran's lumbar spine disability. The evidence is not in approximate balance and the benefit-of-the-doubt doctrine is not applicable, therefore the claim must be denied. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242.

REASONS FOR REMAND

1. Entitlement to a separate evaluation for urinary incontinence is remanded.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. See 38 C.F.R. § 4.71a, General Formula, Note 1. According to note (1) to the General Rating Formula for Diseases and Injuries of the Spine, neurologic abnormalities associated with a spine disability include, but are not limited to, "bowel or bladder impairment," which are evaluated "separately, under an appropriate diagnostic code." 38 C.F.R. § 4.71a.

VA is free to bifurcate a claim and adjudicate it in separate pieces. Tyrues v. Shinseki, 23 Vet. App. 166, 186 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011); rev'd on other grounds, 132 S.Ct.
1. According to note (1) to the General Rating Formula for Diseases and Injuries of the Spine, neurologic abnormalities associated with a spine disability include, but are not limited to, "bowel or bladder impairment," which are evaluated "separately, under an appropriate diagnostic code." 38 C.F.R. § 4.71a.

VA is free to bifurcate a claim and adjudicate it in separate pieces. Tyrues v. Shinseki, 23 Vet. App. 166, 186 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011); rev'd on other grounds, 132 S.Ct. 75 (2011). Further, "[b]ifurcation of a claim generally is within the Secretary's discretion." Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011).

Here, the Veteran was afforded VA Back (Thoracolumbar Spine) Conditions examinations in February 2014, April 2016, and May 2019, at which time, the Veteran did not report urinary incontinence associated with his lumbar spine disability. Therefore, the examination reports do not provide any objective findings with respect to urinary incontinence.

However, in a September 2019 VA treatment record, the Veteran reported that he had experienced urinary incontinence for the last six years. The Veteran also reported that he had never discussed this condition with past providers. The Veteran also repeated this report in October 2019 during a medical appointment to assess his lumbar pain. See September 23, 2019 VA Treatment Note; October 7, 2019 VA Treatment Note.

In light of the directives implicit in Note (1) to the General Rating Formula, the Board finds that a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of the Veteran's urinary incontinence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006)

This matter is REMANDED for the following action:

1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of any bladder disability, to include urinary incontinence. A copy of the Veteran's claims file and this remand must be provided for the VA examiner's review. The examiner must review the record, to include VA treatment records, private treatment records, lay statements, and the Veteran's statements and testimony.

The examiner is asked to opine whether the Veteran has had any bladder dysfunction during the period of claim that is associated with his service-connected thoracolumbar spine disability.

In providing this opinion, the examiner must discuss the Veteran's September 23, 2019 VA Treatment Note and October 7, 2019 VA Treatment Note in which the Veteran reports a history of incontinence.

A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Breslin, Jenna D.

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.

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