Citation Nr: 20015007 Decision Date: 02/27/20 Archive Date: 02/26/20 DOCKET NO. 13-10 737 DATE: February 27, 2020 ORDER Entitlement to service connection for an upper back condition is denied. For the period prior to March 23, 2010, an evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis is denied. For the period beginning March 23, 2010 an increased 40 percent evaluation is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an upper back condition. 2. For the period prior to March 23, 2010, the Veteran's intervertebral disc syndrome with degenerative has not been manifested by limitation of forward flexion to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes, as defined by law, having a total duration of at least four weeks but less than six weeks during the past 12 months, or an associated neurological disability for which a separate rating has not been previously awarded. 3. For the period beginning March 23, 2010, the Veteran’s intervertebral disc syndrome with degenerative has been manifested by limitation of forward flexion to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for service connection for an upper back condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. For the period prior to March 23, 2010 the criteria for a disability rating in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. For the period beginning March 23, 2010, the criteria for a disability rating in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2002 to August 2006. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2016 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In January 2017, the Board denied the Veteran’s claim for service connection for an upper back condition and remanded the Veteran’s claim for an increased rating for intervertebral disc syndrome with degenerative arthritis for additional development. The Veteran appealed the denial of service connection for an upper back condition to the Court of Appeals for Veterans Claims (Court). In September 2017, the Court vacated the portion of the Board decision denying service connection for an upper back condition and remanded the Veteran’s claim for action consistent with the directives of a joint motion for remand (JMR). In February 2018, the Board considered this appeal and remanded the issues for further development including scheduling VA examinations. The case returned to the Board for further appellate review. 1. Entitlement to service connection for a upper back condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen at 444. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran claims he feels pain in his neck, and he think is the result of the pain coming from his lower back and his middle back. See August 2016 Board hearing transcript. In a November 2016 Statement of Support, the Veteran’s representative requested the Board consider service connection for an upper back disability in a direct or secondary basis to the Veteran’s lumbar spine disability. The Veteran is already service-connected for intervertebral disc syndrome with degenerative arthritis, which contemplates disability of his thoracolumbar spine, including both his lumbar and thoracic spine disabilities. A review of VA treatment records does not reflect a diagnosis of a cervical spine disability. Also, the Veteran's service treatment records do not reflect any neck injury or complaint in service. A November 2016 private chiropractic evaluation states that examination of the cervical spine showed tenderness and myospasms upon palpation of the suboccipital, cervical scalene, paracervical, sternocleidomastoid muscles bilaterally and subluxation at C7 spinous left. The Board notes that Dr. C.F.B. diagnosed the Veteran with chronic lumbo-sacral IVD disorders with myelopathy, chronic thoracic and lumbar spine. No diagnosis for the cervical spine was given. Pursuant to the Board’s February 2018 remand, the Veteran was afforded a VA examination for the neck (cervical spine) in November 2019. The Veteran reported that around 2014 his lower back pain began moving upward to his neck. He also reported being treated with pain medication which has not been helpful. The Veteran current symptom is intermittent achy pain in neck, which occurs daily. The Veteran did not report having flare-ups. His functional loss was described as “I have difficulty sleeping”. The examiner noted that the Veteran does not have or has ever been diagnosed with a cervical spine (neck) condition. His initial ROM measurements were all normal. He had forward flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees bilaterally, lateral rotation to 80 degrees bilaterally. No pain was noted during the exam, but the examiner noted there was evidence of pain with weight bearing. The examiner later clarified that non-weight bearing assessment is not applicable. There is no objective evidence of pain when the spine is in a non-weight bearing position at rest. No objective evidence of tenderness or pain on palpation was noted. No localized tenderness, guarding or muscle spasm of the cervical spine. Muscle strength was normal. The examiner noted no radicular pain or any other signs or symptoms due to radiculopathy, and no IVDS of the cervical spine. The examiner confirmed there was no diagnosis of cervical spine (neck) condition. Also added, that “the symptoms are subjective and self-reported. There is not enough current objective evidence in claims file/found on examination to support a chronic diagnosis. No diagnosis rendered.” The examiner further remarked that the “Veteran initially declined cervical x-ray, stating "All this will do is expose me to radiation, it's not necessary". Examiner respected the option to decline and explained rationale for x-ray. In 2016 chiropractor reported tenderness and myospasms upon palpation of the suboccipital, cervical scalene, paracervical and sternocleidomastoid muscles bilaterally and subluxation at C7 spinous left. Prior to leaving clinic veteran decided to proceed with x-ray which was negative. Evidence of pain with weight bearing (on physical exam) & pain noted in history section was self-reported by veteran. There was no objective evidence of cervical pain and no tenderness noted with palpation on today's examination. No diagnosis rendered.” The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event or illness. As rationale, the examiner indicated that “in 2016 chiropractor reported tenderness and myospasms upon palpation of the suboccipital, cervical scalene, paracervical and sternocleidomastoid muscles bilaterally and subluxation at C7 spinous left. However, today's x-ray was negative, there was no objective evidence of cervical pain, no tenderness noted with palpation and not enough current objective evidence in claims file / found on examination to support a chronic diagnosis. No diagnosis rendered.” The examiner also opined that the claimed condition was not at least as likely as not aggravated by a service connected condition as “the condition is not related: The claimed upper back condition was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the service connected condition (thoracolumbar spine intervertebral disc syndrome with degenerative arthritis). Symptoms are subjective and self-reported. There is not enough current objective evidence in claims file / found on examination to support a chronic diagnosis. No diagnosis rendered.” A November 2019 X-ray shows a normal cervical spine. No evidence of fracture or dislocation. The prevertebral space and the soft tissues are unremarkable. No evidence of DDD. Thus, based on the above, the Board must conclude the Veteran does not have a current cervical, claimed as upper back disability for which service connection may be awarded. In considering the present appeal, the Board acknowledges the recent case of Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). In that decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The present case is distinguishable, however, insofar as the November 2019 VA examination has shown findings that are inconsistent with functional impairment. The VA examiner's findings were based on an examination of the Veteran, his reported history, and a claims file review. Put simply, the evidence does not establish a chronic disability process, diagnosed or otherwise, for which service connection is warranted. The Veteran has likewise not indicated any social or occupational impairment resulting from the claimed disability, except for his difficulty sleeping. Regarding evidence of nexus, the Veteran’s representative points out to the August 2016 Report from M.G, PA-C, where she concludes the Veteran’s disease process and multilevel injuries of both the upper and mid-thoracic back and lower back are related to his military service. This report is of little probative value for the claim of an upper back condition as it only discusses the Veteran’s service connected condition of his thoracic and lumbar spine and does not have a supported rationale. The Veteran asserts he has an upper back disability resulting from service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, spine disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the award of service connection for an upper back disability, as neither a current upper back disability nor a nexus with service or a service-connected disability have been established. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Entitlement to an evaluation im excess of 20 percent for intervertebral disc syndrome with degenerative arthritis The Veteran seeks an initial rating in excess of 20 percent for his service-connected intervertebral disc syndrome with degenerative arthritis. He asserts that the rating of 20 percent for the issues he experienced in his lower back, is not adequate. See Board Hearing transcript August 2016. The Veteran's intervertebral disc syndrome with degenerative arthritis has been rated under Diagnostic Code 5243 for IVDS, which is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, the next higher evaluation, a 40 percent rating, is assigned for limitation of forward flexion of the thoracolumbar spine to 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. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The IVDS Formula provides a 20 percent rating 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. However, the Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board notes the Veteran’s intervertebral disc syndrome with degenerative arthritis is currently rated using range of motion rather than IVDS because the former results in a higher rating. The Veteran was afforded VA examinations in 2006, August 2010, August 2012, June 2017, and most recently in November 2019. The Board found the 2006 examination did not provide separate findings for active and passive motion nor specify whether weight-bearing impacted the range of motion. The 2006 examination, however, did reflect range of motion from 0 to 90 degrees of flexion without pain. Motor function and sensory examination of the lower extremities was normal on that date. Private treatment records in October 2007 reflect treatment for the low back but also reflect that there was full range of motion of the back with some increased discomfort on hyperextension, right lateral flexion and minimally increased with right lateral rotation. A subsequent private record in October 2007 indicated the back was nearly normal. An August 2009 record from D.B.P., M.D. reflected range of motion to 60 degrees of flexion of the lumbar spine. The thoracic spine was described as normal thoracic kyphosis no spasm. Motor strength was 5/5 throughout and sensation of the lower extremities was normal. Straight leg raise, spurlings, hoffmans, inverted brachioradialis, finger escape sign Babinski and clonus tests were all negative. He was referred to physical therapy. A February 2010 private chiropractor record noted back pain with lumbar flexion but also indicated there was no palpable tenderness to the paraspinal muscle, sacroiliac joint or trochanteric bursa. Patrick/Fabere test was negative and deep tendon reflex of the patella was +2/4. Clonus was negative and Romberg was negative. He had negative radicular symptoms with bench test. A March 2010 chiropractic record noted good flexion with pain at 20 degrees. Straight leg raising test was negative. Another March 2010 record noted flexion to 36 degrees which was noted to be 60 percent of the normal. Private rehabilitation records in April 2010 reflected that lumbar flexion was 60% of the norm but also noted that there was fair to average effort on two of 5 test and good effort on 3 of 5 tests. The physical therapist explained that lumbar range of motion was limited at all planes with pain at the end ranges but also indicated that the patient appeared to be self limiting secondary to pain and fear of further injury. The August 2010 examination did not include range of motion findings as the Veteran refused it due to pain. Neurological testing on that date reflected no sensory deficits from L1-L5 or S1. The examiner noted they were unable to do reflexes or straight leg raise as the Veteran was unable to sit on the examination table. The examiner noted there was no bowel dysfunction, bladder dysfunction or erectile dysfunction. A June 2011 report of C.N.B., M.D. reported that the lumbar spine flexion was to 30. He further noted there was a 2005 clinical note that was consistent with sciatica. In the August 2012 examination, the Veteran also refused range of motion testing due to pain. Muscle strength testing was 5/5 throughout. Reflexes were 2+ throughout and sensory examination to light touch was normal. Straight leg raise test was negative. The examiner indicated there was no radicular pain or other signs or symptoms of radiculopathy. The Board acknowledges that the Veteran clarified in an April 2013 statement that he did not refuse to do range of motion testing, but that he informed the examiner that he was unable to bend forward without significant pain. The Veteran testified at an August 2016 hearing that his back pain never goes away and persists every day, it makes it difficult to sleep, to walk and to stay asleep. Also, asserted that it affected his work as he has been laid off twice, but now he was doing fine working for himself for the last four and a half years. He does physical therapy, yoga, stretching exercises at home as form of treatment for his lower back condition. In November 2016, the Veteran submitted a private medical evaluation for the low and mid back pain. The Veteran reported the pain as sharp, aching, and stabbing. The symptoms do not radiate and are moderate. At its worst, they are severe. Symptoms are worsening and are worse with flexion and extension. The examiner noted tenderness to palpation of the lumbar paraspinal muscles. The Veteran’s range of motion was noted to be decreased due to subjective pain and muscle spasms. The examiner did not provide a range of motion in measurements nor expressed a reason not to provide it. X-Ray of the LS spine found L5-S1 disc degeneration and X-ray of the T spine was normal. The private examiner assessed the Veteran with L-5 S1 disc degeneration and with Low back and mid back pain. The Veteran submitted a private chiropractic examination, from November 2016. Dr. C.F.B. diagnosed the Veteran with chronic lumbo-sacral IVD disorders with myelopathy, chronic thoracic and lumbar spine. The Veteran reported constant lumbar spine pain centrally located, described as stabbing with a severity level between 5/10 at best and 8/10 with increased activity. Symptoms are aggravated by lumbar flexion and extension, especially when getting up from a seated position. Also, he reported constant thoracic spine pain between the scapula described as dull and stabbing with a severity level between 5/10 at best and 8/10 with increased activity. On active range of motion testing of the lumbar spine, he had forward flexion to 27 degrees, extension to 11 degrees, lateral flexion to 15 degrees bilaterally, right lateral rotation to 17 degrees and left lateral rotation to 28 degrees. On passive range of motion testing of the lumbar spine, he had forward flexion to 27 degrees, extension to 11 degrees, right lateral flexion to 15 degrees, left lateral flexion to 18 degrees, right lateral rotation to 25 degrees and left lateral rotation to 48 degrees. The private examiner did not specify whether weight-bearing impacted the range of motion nor indicate about flare-ups, and do not comply with Correia. Pursuant to the Board’s February 2018 remand, the Veteran was examined again in November 2019. The Veteran reported functional loss as “sleeping is difficult, pulling and stabbing pain makes it difficult to sleep”. The VA examiner did not provide range of motion measurements, in degrees, for both active and passive motion and in weight-bearing and nonweight-bearing. The examination report lists only one set of range of motion measurements, noting pain on forward flexion. Although, the examiner indicated that there is objective evidence of pain on passive range of motion testing of the back, the examiner did not list any additional range of motion measurements. The Board considered this examination did not comply with Correia and, as mentioned above, remanded the case for another examination. More recently, a VA examination was afforded in November 2019. The Veteran reported constant lower back pain, which radiates upward to middle, upper back and neck. He also reported intermittent left lower extremity pain. On initial range of motion testing of the thoracolumbar spine, he had flexion to 10 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, and lateral rotation to 10 degrees bilaterally. The examiner noted an abnormal or outside normal range but is normal for the Veteran due to “suboptimal effort”. Passive ROM of the spine was not performed as the examiner noted that it was not feasible to do it in a safe and reasonable manner. Also, noted that there is no objective evidence of pain when the spine is in a non-bearing position at rest. The Veteran denied flare-ups. As per functional loss, the examiner indicated the “Veteran reports difficulty sleeping and prolonged standing”. It was also noted that the back condition impacts his ability to work with prolonged standing and that the Veteran has lost 2-4 weeks of work time in the last 12 months. The examiner concluded that the Veteran gave "suboptimal effort" based on specific incongruous actions by the Veteran involving his back movements. The examiner noted that “upon entering exam room veteran sat in chair, where he remained while providing medical history. He also quickly removed socks, shoes and pants then opened exam room door, indicating he had changed cloths and was ready for physical. These actions would require ROM greater than which was displayed on physical examination. Upon reentering exam room, veteran was found standing and using phone (texting/email). He continued to reach over to exam table (which also requires ROM greater than what was displayed on examination), pick up phone and text during each pause in the examination”. The Veteran reported an inability to sit on exam table and requested to complete entire exam while standing, even though he had reported an inability to stand for prolonged periods of time. Thus, the examiner noted she was “unable to properly asses/complete lower extremity muscle strength testing, reflex exam and straight leg raises”. 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). Here, for the period prior to March 23, 2010, an evaluation in excess of 20 percent is not warranted. Specifically, the record does not reflect ankylosis of the entire thoracolumbar spine nor does it reflect flexion limited to 30 degrees or less. Rather, VA and private treatment records reflect flexion limited to 60 degrees at worst with one record even noting the Veteran retained full range of motion. To the extent to which the Veteran reported pain and clearly the record reflects a variety of treatments from medication to physical therapy and tens units, the record does not indicate that the functional impact of that pain resulted in further loss of motion. Rather, the examination conducted multiple repetitions and still noted no additional loss of motion. In sum, even considering the effects of pain, the Veteran retained ranges of motion in the thoracolumbar spine. In other words, any additional limitation due to pain does not more nearly approximate a finding of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Accordingly, the 20 percent rating contemplates the functional loss due to pain and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination for this period of the appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. The Board also considered whether the Veteran is entitled to a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243, IVDS. At no time during the rating period was the Veteran entitled to a higher rating under Diagnostic Code 5243 because the evidence does not show that he has experienced any incapacitating episodes due to IVDS as defined in 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. For the period beginning March 23, 2010, however, the record reflects mixed findings. As an initial matter, the Board notes that the Veteran did not participate in range of motion testing during multiple examinations frustrating review. Most concerning was that the November 2019 VA examination noted the Veteran used suboptimal effort performing range of motion testing calling into question some of the findings. Significantly, other private treatment records throughout the appeal period have also noted periods when there was suboptimal effort. VA has a duty to assist veterans to substantiate their claims, including providing a VA examination when necessary. 38 C.F.R. § 3.159 (c)(4) (2017). Concomitantly, veterans have a duty to cooperate during examinations. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). After considering the totality of the record, and resolving doubt in the Veteran’s favor, the Board finds the evidence is at an approximate balance for a higher 40 percent rating beginning March 23, 2010. While the Board may discount evidence when it is inconsistent with the record, in this case, despite the Veteran not performing range of motion findings or performing with suboptimal effort, there are other records which provide enough evidence to rate the claim. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran’s statements, it may consider whether self-interest may be a factor in making such statements). The Board found it significant that some of the private records reflecting suboptimal effort explained that this was due to pain and the veteran’s fear of being reinjured. Thus, resolving all doubt in the Veteran’s favor, the Board will rate the claim on the record. In this regard, a March 23, 2010 private treatment record noted good flexion with pain at 20 degrees. Another March 2010 record noted flexion only to 36 degrees. A November 2016 private record noted flexion limited to 27 degrees. A rating in excess of 40 percent is not warranted as there is no evidence that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. Because the Veteran had at least some range of motion of the thoracolumbar spine on all planes of motion, the record does not more nearly approximate a finding of unfavorable ankylosis or the functional equivalent thereof. The record also does not reflect any incapacitating episodes as defined by VA having a duration of at least six weeks in a 12-month period during the pendency of this appeal. For these reasons, the preponderance evidence of record is against a rating greater than 40 percent for the intervertebral disc syndrome with degenerative arthritis based on the General Rating Formula. 38 C.F.R. §§ 4.3, 4.7. Finally, to the extent to which the Veteran has radiculopathy, the Board notes the Veteran is already in receipt of separate 10 percent ratings for each lower extremity. This is currently rated under Diagnostic Code 8526 for incomplete paralysis of the anterior crural nerve. There is no indication the lower extremities manifest with symptoms that more nearly approximates moderate incomplete paralysis. Specifically, while the Veteran has subjectively reported symptoms, the evidence has consistently reflected that objective testing, including on mcmurray, varus, valgus and drawer tests among others, was normal. As such, a higher rating is not warranted. Additionally, the record has not demonstrated any other neurological involvement such as bowel or bladder impairment and a separate rating for those conditions is also not warranted at this time. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.